Exhibit 4.1
EXECUTION COPY
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DEUTSCHE TELEKOM INTERNATIONAL FINANCE B.V.,
Issuer
DEUTSCHE TELEKOM AG,
Guarantor
TO
CITIBANK, N.A.
Trustee
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INDENTURE
Dated as of July 6, 2000
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Guaranteed Debt Securities
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Exhibit 4.1
EXECUTION COPY
Deutsche Telekom International Finance B.V.
Deutsche Telekom AG
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture act of 1939:
Trust Indenture Indenture
Act Section Section
ss. 310(a)(1) ..................................... 609
(a)(2) ..................................... 609
(a)(3) ..................................... Not Applicable
(a)(4) ..................................... Not Applicable
(b) ..................................... 608
..................................... 610
ss. 311(a) ..................................... 613
(b) ..................................... 613
ss. 312(a) ..................................... 701
..................................... 702
(b) ..................................... 702
(c) ..................................... 702
ss. 313(a) ..................................... 703
(b) ..................................... 703
(c) ..................................... 703
(d) ..................................... 703
ss. 314(a) ..................................... 704
(a)(4) ..................................... 101
..................................... 1004
(b) ..................................... Not Applicable
(c)(1) ..................................... 102
(c)(2) ..................................... 102
(c)(3) ..................................... Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 102
ss. 315(a) ..................................... 601
(b) ..................................... 602
(c) ..................................... 601
(d) ..................................... 601
(e) ..................................... 514
ss. 316(a) ..................................... 101
(a)(1)(A) ..................................... 502
..................................... 512
(a)(1)(B) ..................................... 513
(a)(2) ..................................... Not Applicable
..................................... 508
(c) ..................................... 104
ss. 317(a)(1) ..................................... 503
(a)(2) ..................................... 1003
ss. 318(a) ..................................... 107
______________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
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Page
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RECITALS.....................................................................................................1
ARTICLE ONE..................................................................................................2
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......................................................2
Section 101. Definitions....................................................................................2
Act.................................................................................................2
Additional Amounts..................................................................................2
Adjusted Treasury Yield.............................................................................2
Affiliate...........................................................................................2
Authenticating Agent................................................................................2
Authorized Newspaper................................................................................3
Board of Directors..................................................................................3
Board Resolution....................................................................................3
Business Day........................................................................................3
Capital Market Indebtedness.........................................................................3
Commission..........................................................................................3
Comparable Treasury Issue...........................................................................3
Comparable Treasury Price...........................................................................3
Corporate Trust Office..............................................................................3
Corporation.........................................................................................4
Defaulted Interest..................................................................................4
Defeasance..........................................................................................4
Depositary..........................................................................................4
DTC.................................................................................................4
Encumbrance.........................................................................................4
Event of Default....................................................................................4
Exchange Act........................................................................................4
Expiration Date.....................................................................................4
Global Security.....................................................................................4
Guarantees..........................................................................................4
Guarantor...........................................................................................4
Holder..............................................................................................4
Indenture...........................................................................................4
Interest............................................................................................4
Interest Payment Date...............................................................................4
Investment Company Act..............................................................................4
Issuer..............................................................................................4
Maturity............................................................................................5
Officer's Certificate...............................................................................5
Opinion of Counsel..................................................................................5
Order...............................................................................................5
__________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
Original Issue Discount Security....................................................................5
Outstanding.........................................................................................5
Paying Agent........................................................................................6
Person..............................................................................................6
Place of Payment....................................................................................6
Predecessor Security................................................................................6
Quotation Agent.....................................................................................6
Quotation Agent's Quotations........................................................................6
Redemption Date.....................................................................................6
Redemption Price....................................................................................6
Regular Record Date.................................................................................6
Relevant Jurisdiction...............................................................................6
Responsible Officer.................................................................................6
Securities..........................................................................................6
Securities Act......................................................................................7
Security Register...................................................................................7
Special Record Date.................................................................................7
Stated Maturity.....................................................................................7
Subsidiary..........................................................................................7
Trustee.............................................................................................7
Trust Indenture Act.................................................................................7
United States.......................................................................................7
U.S. Government Obligations.........................................................................7
Vice President......................................................................................7
Section 102. Compliance Certificates and Opinions...........................................................8
Section 103. Form of Documents Delivered to Trustee.........................................................8
Section 104. Acts of Holders of Securities; Record Dates....................................................8
Section 105. Notices, Etc., to Trustee, Issuer and Guarantor...............................................10
Section 106. Notice to Holders; Waiver.....................................................................10
Section 107. Language of Notices, Etc......................................................................11
Section 108. Conflict with Trust Indenture Act.............................................................11
Section 109. Effect of Headings and Table of Contents......................................................11
Section 110. Successors and Assigns........................................................................11
Section 111. Separability Clause...........................................................................11
Section 112. Benefits of Indenture.........................................................................11
Section 113. Governing Law.................................................................................12
Section 114. Saturday, Sundays and Legal Holidays..........................................................12
Section 115. Appointment of Agent for Service..............................................................12
_________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
ARTICLE TWO.................................................................................................13
SECURITY AND GUARANTEE FORMS................................................................................13
Section 201. Forms Generally...............................................................................13
Section 202. Form of Face of Global Security...............................................................14
Section 203. Form of Reverse of Security...................................................................16
Section 204. Form of Legend for Global Securities..........................................................22
Section 205. Form of Trustee's Certificate of Authentication...............................................22
Section 206. Guarantee by Guarantor; Form of Guarantee.....................................................23
ARTICLE THREE...............................................................................................26
THE SECURITIES AND GUARANTEES...............................................................................26
Section 301. Amount Unlimited; Issuable in Series..........................................................26
Section 302. Denominations.................................................................................28
Section 303. Execution, Authentication, Delivery and Dating................................................28
Section 304. Temporary Securities..........................................................................30
Section 305. Registration, Registration of Transfer and Exchange...........................................30
Section 306. Mutilated, Destroyed, Lost and Stolen Securities..............................................32
Section 307. Payment of Interest; Interest Rights Preserved................................................32
Section 308. Persons Deemed Owners.........................................................................33
Section 309. Cancellation..................................................................................33
Section 310. Computation of Interest.......................................................................34
Section 311. CUSIP Numbers.................................................................................34
ARTICLE FOUR................................................................................................35
SATISFACTION AND DISCHARGE..................................................................................35
Section 401. Satisfaction and Discharge of Indenture.......................................................35
Section 402. Application of Trust Money....................................................................36
_________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
Section 403. Defeasance and Discharge of Securities of any Series..........................................36
ARTICLE FIVE................................................................................................38
REMEDIES....................................................................................................38
Section 501. Events of Default.............................................................................38
Section 502. Acceleration of Maturity; Rescission and Annulment............................................39
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee...............................40
Section 504. Trustee May File Proofs of Claim..............................................................40
Section 505. Trustee May Enforce Claims Without Possession of Securities...................................40
Section 506. Application of Money Collected................................................................41
Section 507. Limitation on Suits...........................................................................41
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert.......................................................................41
Section 509. Restoration of Rights and Remedies............................................................42
Section 510. Rights and Remedies Cumulative................................................................42
Section 511. Delay or Omission Not Waiver..................................................................42
Section 512. Control by Holders............................................................................42
Section 513. Waiver of Past Defaults.......................................................................43
Section 514. Undertaking for Costs.........................................................................43
Section 515. Waiver of Stay or Extension Laws..............................................................43
ARTICLE SIX.................................................................................................44
THE TRUSTEE.................................................................................................44
Section 601. Certain Duties and Responsibilities...........................................................44
Section 602. Notice of Defaults............................................................................44
Section 603. Certain Rights of Trustee.....................................................................44
Section 604. Not Responsible for Recitals or Issuance of Securities........................................45
Section 605. May Hold Securities...........................................................................45
_________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
Section 606. Money Held in Trust...........................................................................45
Section 607. Compensation and Reimbursement................................................................46
Section 608. Conflicting Interests.........................................................................46
Section 609. Corporate Trustee Required; Eligibility.......................................................46
Section 610. Resignation and Removal; Appointment of Successor.............................................46
Section 611. Acceptance of Appointment by Successor........................................................48
Section 612. Merger, Conversion, Consolidation or Succession to Business...................................49
Section 613. Preferential Collection of Claims Against Issuer or Guarantor.................................49
Section 614. Appointment of Authenticating Agent...........................................................49
Section 615. Trustee's Application for Instructions from the Issuer........................................51
ARTICLE SEVEN...............................................................................................52
HOLDERS' LISTS AND REPORTS BY TRUSTEE, ISSUER AND THE GUARANTOR.............................................52
Section 701. Issuer and Guarantor to Furnish Trustee Names and Addresses of Holders........................52
Section 702. Preservation of Information; Communications to Holders........................................52
Section 703. Reports by Trustee............................................................................52
Section 704. Reports by Issuer and Guarantor...............................................................53
Section 705. Calculation of Original Issue Discount........................................................53
ARTICLE EIGHT...............................................................................................54
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE........................................................54
Section 801. Issuer or Guarantor May Consolidate, Etc., Only on Certain Terms.............................54
Section 802. Successor Substituted.........................................................................55
Section 803. Assumption by Guarantor or Subsidiary of Issuer's Obligations.................................55
ARTICLE NINE................................................................................................57
SUPPLEMENTAL INDENTURES.....................................................................................57
Section 901. Supplemental Indentures Without Consent of Holders............................................57
_________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
Section 902. Supplemental Indentures with Consent of Holders...............................................58
Section 903. Execution of Supplemental Indentures..........................................................59
Section 904. Effect of Supplemental Indentures.............................................................59
Section 905. Conformity with Trust Indenture Act...........................................................59
Section 906. Reference in Securities to Supplemental Indentures............................................59
ARTICLE TEN.................................................................................................60
COVENANTS...................................................................................................60
Section 1001. Payment of Principal, Premium and Interest...................................................60
Section 1002. Maintenance of Office or Agency..............................................................60
Section 1003. Money for Securities Payments to Be Held in Trust............................................60
Section 1004. Additional Amounts...........................................................................61
Section 1005. Statement by Officers as to Default..........................................................62
Section 1006. Existence....................................................................................63
Section 1007. Maintenance of Properties....................................................................63
Section 1008. Payment of Taxes and Other Claims............................................................63
Section 1009. Limitation on Liens..........................................................................63
Section 1010. Waiver of Certain Covenants..................................................................63
ARTICLE ELEVEN..............................................................................................65
REDEMPTION OF SECURITIES....................................................................................65
Section 1101. Applicability of Article.....................................................................65
Section 1102. Election to Redeem; Notice to Trustee........................................................65
Section 1103. Selection by Trustee of Securities to Be Redeemed............................................65
Section 1104. Notice of Redemption.........................................................................66
Section 1105. Deposit of Redemption Price..................................................................66
Section 1106. Securities Payable on Redemption Date........................................................67
Section 1107. Securities Redeemed in Part..................................................................67
_________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
Section 1108. Optional Redemption Due to Changes in Tax Treatment..........................................67
ARTICLE TWELVE..............................................................................................69
SINKING FUNDS...............................................................................................69
Section 1201. Applicability of Article.....................................................................69
Section 1202. Satisfaction of Sinking Fund Payments with Securities........................................69
Section 1203. Redemption of Securities for Sinking Fund....................................................69
TESTIMONIUM.................................................................................................70
SIGNATURES AND SEALS........................................................................................71
______________
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
INDENTURE, dated as of July 6, 2000, among DEUTSCHE TELEKOM
INTERNATIONAL FINANCE B.V., a private company with limited liability
incorporated under the laws of The Netherlands (the "Issuer"), having its
principal office at World Trade Center, Strawinskylaan 1243, NL-1077 XX
Amsterdam, The Netherlands, DEUTSCHE TELEKOM AG, a private law stock corporation
incorporated under the laws of the Federal Republic of Germany (the
"Guarantor"), having its principal office at Xxxxxxxxx-Xxxxx-Xxxxx 000, X-00000
Xxxx, Xxxxxxx, and CITIBANK, N.A., a national banking association duly organized
and existing under the laws of the United States of America, as Trustee
hereunder (herein called the "Trustee").
RECITALS
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the Guarantees by it with respect to the Securities as
set forth in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Issuer and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Securities, as follows:
1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles," or "GAAP," with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the Federal Republic of Germany at the
date of such computation and as applied by the Guarantor; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means additional amounts payable pursuant to
Section 1004.
"Adjusted Treasury Yield" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date plus:
(i) in the case of a Security of any series maturing in less than
five years from its initial date of issuance, 15 basis points; or
(ii) in the case of a Security of any series maturing in five years
or greater from its initial date of issuance, 20 basis points.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
2
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Board of Directors", when used with reference to the Issuer or the
Guarantor, means the board of directors of the Issuer or the Guarantor, as the
case may be, or any committee of such board of the Issuer or the Guarantor, as
the case may be, duly authorized to act for such board hereunder.
"Board Resolution", when used with reference to the Issuer, means a
copy of a resolution certified by any member of the Board of Directors or the
Secretary or the Assistant Secretary, or, with reference to the Guarantor, means
a copy of a resolution certified by any member of the Board of Directors or the
Secretary or the Assistant Secretary, or, in each case, any person duly
appointed by the Board of Directors to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and in each case delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Market Indebtedness" means any obligation for the payment of
borrowed money which is in the form of, or represented or evidenced by, a
certificate of indebtedness or in the form of, or represented or evidenced by,
bonds, notes or other securities which are, or are capable of being, quoted,
listed, dealt in or traded on a stock exchange or other recognized securities
market. For the purposes of avoiding any doubt in respect of asset-backed
financings originated by the Issuer or the Guarantor, the expressions "assets"
and "obligations for the payment of borrowed money" as used in this definition
do not include assets and obligations of the Issuer or the Guarantor which,
pursuant to the requirements of law and accounting principles generally accepted
in The Netherlands or the Federal Republic of Germany, as the case may be, need
not, and are not, reflected in the balance sheet of the Issuer or the Guarantor,
as the case may be.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Comparable Treasury Issue" means an obligation issued by the United
States Treasury selected by the Quotation Agent as having a maturity comparable
to the remaining term of any series of Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such series of Securities.
"Comparable Treasury Price" means, with respect to any Redemption Date,
the average of the Quotation Agent's Quotations for such Redemption Date.
"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 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Citibank Agency & Trust Services, or such other
address as the Trustee may designate from time to time by notice to the Holders,
the Issuer and the Guarantor, or the principal corporate trust office of any
successor Trustee (or such other address as a successor Trustee may designate
from time to time by notice to the Holders, the Issuer and the Guarantor).
3
"Corporation" means a corporation, association, company (including
without limitation a limited liability company), joint-stock company or business
trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 403.
"Depositary" means, with respect to Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301.
"DTC" means The Depository Trust Company or its nominee.
"Encumbrance" means any mortgage, pledge, security interest or lien.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the United States Securities Exchange Act of 1934
and any statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security evidencing all or part of the
Securities of any series substantially in the form set forth in Section 202
hereof.
"Guarantees" means any Guarantees of the Guarantor endorsed on
Securities authenticated and delivered pursuant to this Indenture and shall
include the form of Guarantee set forth in Section 208.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the United States Investment Company Act
of 1940 and any statute successor thereto, in each case as amended from time to
time.
"Issuer" means the Person named as "Issuer" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Issuer" shall mean such
successor Person. Issuer shall also mean any new issuer of Securities under this
Indenture as contemplated by Section 901(1).
4
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer's Certificate" means a certificate signed by any director or
the Secretary or any person duly appointed in a Board Resolution of the Issuer
or the Guarantor, as the case may be, in each case delivered to the Trustee. The
officer signing an Officer's Certificate given pursuant to Section 1005 shall be
the principal executive, financial or accounting officer of the Issuer or the
Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer or the Guarantor, or other counsel.
"Order" means a written request or order signed in the name of the
Issuer or the Guarantor by any director or the Secretary or any person duly
appointed by the Board of Directors of the Issuer or the Guarantor, as the case
may be, in each case delivered to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Issuer) in trust or set aside and segregated in trust by the
Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been effected pursuant to
Section 403; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 301 on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, (iii) if the principal
amount payable at Stated Maturity of any Security is not determinable upon
original issuance, the principal amount of such Security that shall be deemed to
be Outstanding shall be the amount as specified or determined as contemplated by
Section 301, and (iv) Securities owned by the Issuer, the Guarantor or any other
obligor upon the Securities or any Affiliate of the Issuer, the Guarantor or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer, the Guarantor or any other
obligor upon the Securities or any Affiliate of the Issuer, the Guarantor or of
such other obligor.
5
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or any premium or interest on any Securities on its behalf.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Quotation Agent" means a reference dealer in obligations issued by the
United States Treasury that is a primary U.S. government securities dealer in
New York City, appointed by the Trustee after consultation with the Issuer and
the Guarantor.
"Quotation Agent's Quotations" means, with respect to any Redemption
Date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by the Quotation Agent at
5:00 p.m. on the third Business Day preceding such Redemption Date.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Relevant Jurisdiction" has the meaning specified in Section 1004.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, trust officer or any
other officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
6
"Securities Act" means the United States Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such instalment of principal or interest is due and payable.
"Subsidiary" of any Person means a corporation in respect of which more
than 50% of the outstanding voting stock or equity interest having by the terms
thereof ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time directly or indirectly owned
or controlled by the Guarantor or by one or more of its Subsidiaries, or by the
Guarantor and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, 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
Securities of that series.
"Trust Indenture Act" means the United States Trust Indenture Act of
1939 as in force at the date as of which this instrument was executed (except as
provided in Section 905); provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
"United States" means the United States of America (including the
States and the District of Columbia) and its possessions (including Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands).
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of 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 from any amount received 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.
"Vice President", when used with respect to the Issuer or the
Guarantor, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
7
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Issuer or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the Issuer or
Guarantor shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officer's Certificate, if to be given by an officer
of the Issuer or the Guarantor, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer or the Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Issuer or the
Guarantor stating that the information with respect to such factual matters is
in the possession of the Issuer or the Guarantor, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders of Securities; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Issuer and the
Guarantor. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Issuer and the Guarantor, if made in the manner provided in
this Section.
8
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Issuer and the Guarantor may set any day as a record date for
the purpose of determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture
to be given, made or taken by Holders of Securities of such series, provided
that the Issuer and the Guarantor may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Issuer or the Guarantor from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Issuer and the Guarantor, at their own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any declaration of acceleration referred to in
Section 502, (ii) any request to institute proceedings referred to in Section
507(1) or (iii) any direction referred to in Section 512, in each case with
respect to Securities of such series. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the expense of the Issuer and the Guarantor, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Issuer and the Guarantor in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
9
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party or parties hereto in
writing, and to each Holder of Securities of the relevant series in the manner
set forth in Section 106, on or prior to the existing Expiration Date.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date and, if an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party or parties hereto which set such record date shall be deemed to have
designated the 180th day after such record date as the Expiration Date with
respect thereto.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the
Issuer or the Guarantor in reliance thereon, whether or not notation of such
action is made upon such Security.
Section 105. Notices, Etc., to Trustee, Issuer and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided for or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuer or the Guarantor shall
be sufficient for every purpose hereunder if made, given, furnished or filed in
writing (or sent by facsimile and confirmed in writing) to or with the Trustee
at its Corporate Trust Office, Attention: Citibank Agency & Trust Services, or
(2) the Issuer or the Guarantor by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed (or sent by facsimile and confirmed in
writing), in the case of the Issuer, international air mail postage prepaid and
addressed to its principal office specified in the first paragraph of this
instrument to the attention of its Secretary, or at any other address previously
furnished in writing to the Trustee by the Issuer and, in the case of the
Guarantor, international air mail postage prepaid and addressed to its principal
office specified in the first paragraph of this instrument to the attention of
its Secretary, or at any other address previously furnished in writing to the
Trustee by the Guarantor.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice.
10
In any case where notice to 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.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 107. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer or the
Guarantor shall bind their respective successors and assigns, whether so
expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities or the
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture, the Securities or the Guarantees, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
11
Section 113. Governing Law.
This Indenture and the Securities and the Guarantees shall be governed
by and construed in accordance with the laws of the State of New York.
Section 114. Saturday, Sundays and Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or the last day on which Holders have the right to
convert their Securities shall not be a Business Day at any Place of Payment or
conversion, then (notwithstanding any other provision of this Indenture or of
the Securities (other than a provision of any Security which specifically states
that such provision shall apply in lieu of this Section)) payment of interest or
principal (and premium, if any) or conversion need not be made at such Place of
Payment or conversion on such date, but may be made on the next succeeding
Business Day at such Place of Payment or conversion with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity or on such last day for conversion.
Section 115. Appointment of Agent for Service.
By the execution and delivery of this Indenture, each of the Issuer and
the Guarantor hereby appoints Deutsche Telekom Inc. as its agent upon which
process may be served in any legal action or proceeding which may be instituted
in any Federal or State court in the Borough of Manhattan, the City of New York,
arising out of or relating to the Securities, the Guarantees or this Indenture,
but for that purpose only. Service of process upon such agent at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and written notice of said service to the
Issuer or the Guarantor by the Person servicing the same addressed as provided
by Section 105, shall be deemed in every respect effective service of process
upon the Issuer or the Guarantor, respectively, in any such legal action or
proceeding, and each of the Issuer and the Guarantor hereby submits to the
nonexclusive jurisdiction of any such court in which any such legal action or
proceeding is so instituted. Such appointment shall be irrevocable so long as
the Holders of Securities shall have any rights pursuant to the terms thereof or
of this Indenture until the appointment of a successor by the Issuer or the
Guarantor with the consent of the Trustee and such successor's acceptance of
such appointment. Each of the Issuer and the Guarantor further agrees to take
any and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment of such agent or successor.
12
ARTICLE TWO
SECURITY AND GUARANTEE FORMS
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution of the Issuer 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 such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depositary therefor or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof. If the form of Securities of any series
is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by any member of the Board
of Directors or the Secretary or the Assistant Secretary of the Issuer delivered
to the Trustee at or prior to the delivery of the Order contemplated by Section
303 for the authentication and delivery of such Securities.
The Guarantees by the Guarantor to be endorsed on the Securities of
each series shall be in substantially the form set forth in Section 206, or in
such other form as shall be established by or pursuant to a Board Resolution of
the Guarantor, or in one or more indentures supplemental hereto, pursuant to
Section 301 in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depositary therefor or as may,
consistently herewith, be determined by the directors or officers delivering
such Guarantees, all as evidenced by such delivery.
The definitive Securities 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, as evidenced by their execution of
such Securities.
13
Section 202. Form of Face of Global Security.
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
DEUTSCHE TELEKOM INTERNATIONAL FINANCE B.V.
[__%] [FLOATING RATE] GUARANTEED [NOTES] [BONDS]
[DEBENTURES]
DUE _______ ___, 20___
Payment of Principal[, Premium, if any,]
and Interest Fully and Unconditionally Guaranteed by
DEUTSCHE TELEKOM AG
No. ____________ CUSIP NO.
---------
DEUTSCHE TELEKOM INTERNATIONAL FINANCE B.V., a private company with
limited liability incorporated under the laws of The Netherlands (herein called
the "Issuer", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to
_________________________, or registered assigns, the principal sum of
______________________ on ________________________________________ [if the
Security is to bear interest prior to Maturity, insert --, and to pay interest
thereon from _____________, 20___ or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually in arrears
on ____________ and ____________ in each year] [annually in arrears on
______________ in each year], commencing ___________, 20___, [if fixed rate
securities, insert -- at the rate of ____% per annum] [if floating rate
securities, insert formula for determining the interest rate], until the
principal hereof is paid or made available for payment [if applicable, insert
--, provided that any principal and premium, and any such instalment of
interest, which is overdue shall bear interest at the rate of __% per annum (to
the extent that the payment of such interest shall be legally enforceable), from
the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand].] The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
_______ [or _______] (whether or not a Business Day)[, as the case may be,] next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity, and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the date such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue principal
or premium which is not so paid on demand shall bear interest at the rate of
____% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on overdue interest
shall be payable on demand.] [The Trustee shall act as Paying Agent with respect
to the Securities of this series.]
14
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed manually or in facsimile.
Dated:
DEUTSCHE TELEKOM INTERNATIONAL FINANCE B.V.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
15
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Issuer (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 6, 2000 (herein called the
"Indenture" which term shall have the meaning assigned to it in such
instrument), among the Issuer, Deutsche Telekom AG, a private law stock
corporation incorporated under the laws of the Federal Republic of Germany
(herein called the "Guarantor", which term includes any successor Person under
the Indenture referred to herein), and Citibank, N.A., as Trustee (herein called
the "Trustee", which term includes any other successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Issuer, the Guarantor, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [,
limited in aggregate principal amount to [insert currency and amount].
[If further issues are contemplated, insert -- The Issuer may from time
to time, without the consent of the Holders, create and issue further securities
having the same terms and conditions as the Securities in all respects (or in
all respects except for the issue date, the first payment of interest thereon
and/or issue price), so that such further issue shall be consolidated and form a
single series with the outstanding Securities or upon such terms as the Issuer
may determine at the time of their issue.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ___________ in any year commencing with the year ______ and ending with
the year ______ through operation of the sinking fund for this series at a
Redemption Price equal to [insert formula for determining amount] (with the
amount in excess of 100% of the principal amount being additional interest), and
(2)] at any time [if applicable, insert -- on or after __________, 20____], as a
whole or in part, at the election of the Issuer, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed [if
applicable, insert -- on or before _______________, __%, and if redeemed] during
the 12-month period beginning _____________ of the years indicated,
16
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year ____ and ending with the year ____, through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ____________, 20___], as a whole or in part,
at the election of the Issuer, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount, with the amount in excess of 100% of the principal amount
being additional interest) set forth in the table below: If redeemed during the
12-month period beginning ______________ of the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Issuer may
not, prior to _____________, redeem any Securities of this series as
contemplated by [If applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the Issuer
(calculated in accordance with generally accepted financial practice) of less
than _____% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ____________ in each year beginning with the year ______ and
ending with the year ______ of [if applicable, insert -- not less than [insert
currency and amount] ("mandatory sinking fund") and not more than [insert
currency and amount] aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Issuer otherwise than
through [if applicable, insert -- mandatory] sinking fund payments may be
credited against subsequent [if applicable, insert -- mandatory] sinking fund
payments otherwise required to be made [if applicable, insert -- in the inverse
order in which they become due].]
[If applicable, insert -- The Securities may be redeemed at the option
of the Issuer or the Guarantor, in whole but not in part, upon not less than 30
nor more than 60 days' notice given as provided in the Indenture, at any time at
a Redemption Price equal to the principal amount thereof plus accrued interest
to the date fixed for redemption if as a result of any change in or amendment to
the laws or any regulations or rulings promulgated thereunder of the
jurisdiction (or of any political subdivision or taxing authority thereof or
therein) in which the Issuer or the Guarantor is incorporated (or in the case of
a successor Person to the Issuer or the Guarantor, of the jurisdiction in which
such successor Person is organized or any political subdivision or taxing
authority thereof or therein) or any change in the official application or
interpretation of such laws, regulations or rulings, or any change in the
official application or interpretation of, or any execution of or amendment to,
any treaty or treaties affecting taxation to which such jurisdiction or such
political subdivision or taxing authority (or such other jurisdiction or
political subdivision or taxing authority) is a party, which change, execution
or amendment becomes effective on or after ____________ (or, in the case of a
successor Person to the Issuer or the Guarantor, the date on which such
successor Person became such pursuant to the applicable provision of the
Indenture) (i) the Issuer or the Guarantor (or such successor Person) is or
would be required to pay Additional Amounts with respect to the Securities or
the Guarantees, respectively, on the next succeeding Interest Payment Date as
set forth below or in the Guarantee endorsed hereon or (ii) the Guarantor or any
Subsidiary of the Guarantor is or would be required to deduct or withhold tax on
any payment to the Issuer to enable the Issuer to make any payment of principal
or interest in respect of the Securities and, in each case, the payment of such
Additional Amounts in the case of (i) above or such deduction or withholding in
the case of (ii) above cannot be avoided by the use of any reasonable measures
available to the Issuer, the Guarantor or the Subsidiary.]
17
[If applicable, insert -- The Securities may also be redeemed in whole
but not in part upon not less than 30 nor more than 60 days' notice given as
provided in the Indenture at any time at a Redemption Price equal to the
principal amount thereof plus accrued interest to the date fixed for redemption
if the Person formed by a consolidation of the Issuer or the Guarantor or into
which the Issuer or the Guarantor is merged or to which the Issuer or the
Guarantor conveys, transfers or leases its properties and assets substantially
as an entirety is required to pay a Holder additional amounts in respect of any
tax, assessment or governmental charge imposed on any such Holder or required to
be withheld or deducted from any payment to such Holder as a consequence of such
consolidation, merger, conveyance, transfer or lease.]
[If applicable, insert -- the Redemption Price of the Securities shall
be equal to the applicable percentage of the principal amount at Stated Maturity
set forth below:
If Redemption During the Redemption
12-Month Period Commencing Price
-------------------------- -----
together with, in each case (except if the Redemption Date shall be a
_____________), an amount equal to the applicable Redemption Price multiplied by
a fraction the numerator of which is the number of days from but not including
the preceding ________________ to and including the Redemption Date multiplied
by the difference between the Redemption Price applicable during the 12 months
beginning on the _________________ following the Redemption Date (or, in the
case of a Redemption Date after ________________, 100%) and the Redemption Price
applicable on the Redemption Date and the denominator of which is the total
number of days from but not including the _________________ preceding the
Redemption Date to and including the next succeeding _____________. The Issuer
will also pay to each eligible Holder, or make available for payment to each
such Holder, on the Redemption Date any additional interest (as set forth [on
the face hereof or] in the Guarantee endorsed hereon) resulting from the payment
of such Redemption Price.]
[If applicable insert -- The Redemption Price of the Securities either
in the event of certain changes in the tax treatment or in an event of default
would include, in addition to the face amount of the Security, an amount equal
to the Original Issue Discount accrued since the issue date. Original Issue
Discount (the difference between the Issue Price and the Principal Amount at
Maturity of the Security), in the period during which a Security remains
outstanding, shall accrue at ___% per annum, on a semi-annual bond equivalent
basis using a 360-day year composed of twelve 30-day months, commencing on the
Issue Date of this Security.]
18
[If applicable insert -- Notice of redemption will be given by mail to
Holders of Securities, not less than 30 nor more than 60 days prior to the date
fixed for redemption, all as provided in the Indenture.]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of the entire indebtedness on this Security upon
compliance by the Issuer or the Guarantor with certain conditions set forth
thereon, which provisions apply to this Security.]
[If applicable, insert -- Subject to and upon compliance with the
provisions of the Indenture, the Holder of this Security is entitled, at his
option, at any time after _________________, to convert this Security into
[Describe Securities and conversion mechanics].]
[If applicable, insert -- In the event of conversion of this Security
in part only, a new Security or Securities of this series and of like tenor for
the unconverted portion hereof will be issued in the name of the Holder hereof
upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the applicable Issuer's obligations in respect of the
payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
[If any deduction or withholding for any present or future taxes or
other governmental charges of the Relevant Jurisdiction shall at any time be
required by the Relevant Jurisdiction in respect of any amounts to be paid by
the Issuer under the Securities, the Issuer will pay to the Holder of this
Security, such additional amounts as may be necessary in order that the net
amounts paid to such Holder of such Security shall be not less than the amounts
specified in such Security to which such Holder is entitled; provided, however,
that the Issuer shall not be required to make any payment of additional amounts
for or on account of:
(1) any tax or other governmental charge which would not have been
imposed but for the existence of any present or former connection between such
Holder and the Relevant Jurisdiction (other than the mere holding of a Security
and the receipt of payments thereon), including, without limitation, such Holder
being or having been a citizen or resident thereof or being or having been
present or engaged in trade or business therein or having or having had a
permanent establishment therein;
(2) any tax or other governmental charge which would not have been
imposed but for the status of such Holder as an individual resident of a member
state of the European Union;
(3) any tax or other governmental charge that would not have been
imposed but for a failure to comply with any applicable certification,
information, identification, documentation or other reporting requirements
concerning the nationality, residence, identity or connection with the Relevant
Jurisdiction if such compliance is required as a precondition to relief or
exemption from such tax or other governmental charge (including without
limitation a certification that such Holder is not resident in the Relevant
Jurisdiction);
19
(4) any tax or other governmental charge which would not have been
imposed but for a change in law that becomes effective more than 30 days after a
payment by the Issuer under the Securities becomes due and payable, or is duly
provided for and notice thereof is duly published, whichever occurs later;
(5) any tax or other governmental charge required to be withheld by any
Paying Agent from a payment on a Security, if such payment can be made without
such deduction or withholding by any other Paying Agent; or
(6) any combination of items (1), (2), (3), (4) and (5) above.
The foregoing provisions shall apply mutatis mutandis to any
withholding or deduction for or on account of any present or future taxes or
governmental charges of whatever nature of any jurisdiction in which any
successor Person to the Issuer is organized, or any political subdivision or
taxing authority thereof or therein. As used in (1), (2) and (3) above,
references to Holder shall include a fiduciary, settler, beneficiary, member or
shareholder of, or possessor of a power over, such Holder, if such Holder is an
estate, trust, partnership or corporation.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the Guarantor and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by the Issuer, the
Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Issuer or the Guarantor with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture, the Guarantee endorsed hereon, this
Security or for any remedy thereunder, unless such Holder shall have previously
given to the Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in principal of the Outstanding Securities of this series
a direction inconsistent with such request and shall have failed to institute
such proceeding within 60 days; provided, however, that such limitations do not
apply to a suit instituted by the Holder hereof for the enforcement of payment
of the principal [(and premium, if any)] or [any] interest on this Security on
or after the respective due dates expressed herein [If applicable insert -- or
to a suit instituted by the Holder hereof for the enforcement of the right to
convert this Security in accordance with the Indenture]
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed or to convert this Security as provided in the Indenture.
20
The Securities of this series are issuable only in registered form
without coupons in denominations of [insert currency and amount] and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same. As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.]
[No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.]
Prior to due presentment of this Security for registration of transfer,
the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the
Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue, and none of the Issuer, the Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
21
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
Citibank, N.A.
As Trustee
By:
---------------------------------
Authorized Signatory
22
Section 206. Guarantee by Guarantor; Form of Guarantee.
The Guarantor by its execution of this Indenture hereby agrees with
each Holder of a Security (other than any direct or indirect Subsidiary of the
Guarantor) of each series authenticated and delivered by the Trustee and with
the Trustee on behalf of such Holder (other than any direct or indirect
Subsidiary of the Guarantor), to be unconditionally bound by the terms and
provisions of the Guarantee set forth below or established pursuant to Section
201 and authorizes the Issuer, in the name and on behalf of the Guarantor, to
confirm such Guarantee to the Holder (other than any direct or indirect
Subsidiary of the Guarantor) of each such Security by its execution and delivery
of each such Security, with such Guarantee endorsed thereon, authenticated and
delivered by the Trustee; provided, however, that if a series of Securities are
to be initially offered and sold to a direct or indirect Subsidiary of the
Guarantor, the Officer's Certificate delivered in respect of such series
pursuant to Section 301 may state that the Securities of such series are not
entitled to the benefit of such Guarantee and such Guarantee shall not be
endorsed thereon; provided, further, if such a Subsidiary (or another direct or
indirect Subsidiary of the Guarantor) offers for resale (other than to another
direct or indirect Subsidiary of the Guarantor) any such Security acquired
directly or indirectly from the Issuer under this Indenture, the Guarantor,
acknowledging good and valuable consideration in connection with such a resale,
by its execution of this Indenture, further agrees with each Holder of any such
Security of each series authenticated and delivered by the Trustee and with the
Trustee on behalf of each such Holder to be unconditionally bound by the terms
and provisions of the Guarantee set forth below or established pursuant to
Section 201 and will authorize the Issuer, pursuant to an additional Officer's
Certificate in the name and on behalf of the Guarantor, to confirm such
Guarantee to the Holder of each such Security at any time after its initial
execution and delivery to a direct or indirect Subsidiary of the Guarantor. When
delivered pursuant to the provisions of Section 303 hereof, Guarantees so set
forth on the Securities (either at the time of original issuance or at the time
of resale by a direct or indirect Subsidiary of the Guarantor) shall bind the
Guarantor notwithstanding the fact that the Guarantee does not bear the
signature of the Guarantor.
Guarantees to be endorsed on the Securities shall, subject to Section
201, be in substantially the form set forth below:
GUARANTEE
For value received, Deutsche Telekom AG, a private law stock company
incorporated under the laws of the Federal Republic of Germany, having its
registered office at Xxxxxxxxx-Xxxxx-Xxxxx 000, X-00000, Xxxx, Xxxxxxx (herein
called the "Guarantor", which term includes any successor Person under the
Indenture referred to in the Security upon which this Guarantee is endorsed),
hereby fully, unconditionally and irrevocably guarantees to the Holder of the
Security upon which this Guarantee is endorsed and to the Trustee, in its
individual and trust capacities, and on behalf of each such Holder the due and
punctual payment of the principal of, premium, if any, and interest on such
Security and the due and punctual payment of the sinking fund or analogous
payments referred to therein, if any, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption or otherwise, according to the terms thereof and of the Indenture
referred to therein. In case of the failure of Deutsche Telekom International
Finance B.V. (the "Issuer", which term includes any successor Person under such
Indenture), punctually to make any such payment of principal, premium, if any,
or interest or any sinking fund or analogous payment, the Guarantor hereby
agrees to cause any such payment to be made punctually when and as the same
shall become due and payable, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise, and as if such payment were
made by the Issuer.
[If not applicable delete -- The Guarantor hereby further agrees,
subject to the limitations and exceptions set forth below, that if any deduction
or withholding for any present or future taxes or other governmental charges of
the Relevant Jurisdiction shall at any time be required by the Relevant
Jurisdiction in respect of any amounts to be paid by the Guarantor under this
Guarantee, then the Guarantor will pay to the Holder of a Security as additional
interest such additional amounts as may be necessary in order that the net
amounts paid to the Holder of such Security shall be not less than the amounts
specified in such Security to which such Holder is entitled; provided, however,
that the Guarantor shall not be required to make any payment of additional
amounts for or on account of:
23
(a) any tax or other governmental charge which would not have been
imposed but for the existence of any present or former connection between such
Holder and the Relevant Jurisdiction (other than the mere holding of a Security
and the receipt of payments thereon), including, without limitation, such Holder
being or having been a citizen or resident thereof or being or having been
present or engaged in trade or business therein or having or having had a
permanent establishment therein;
(b) any tax or other governmental charge which would not have been
imposed but for the status of such Holder as an individual resident of a member
state of the European Union;
(c) any tax or other governmental charge that would not have been
imposed but for a failure to comply with any applicable certification,
information, identification, documentation or other reporting requirements
concerning the nationality, residence, identity or connection with the Relevant
Jurisdiction if such compliance is required as a precondition to relief or
exemption from such tax or other governmental charge (including without
limitation a certification that such Holder is not resident in the Relevant
Jurisdiction);
(d) any tax or other governmental charge which would not have been
imposed but for a change in law that becomes effective more than 30 days after a
payment by the Guarantor under this Guarantee becomes due and payable, or is
duly provided for and notice thereof is duly published, whichever occurs later;
(e) any tax or other governmental charge required to be withheld by any
Paying Agent from a payment on a Security, if such payment can be made without
such deduction or withholding by any other Paying Agent; or
(f) any combination of items (a), (b), (c), (d) and (e) above.
The foregoing provision shall apply mutatis mutandis to any withholding
or deduction for or on account of any present or future taxes or governmental
charges or whatever nature of any jurisdiction in which any successor Person to
the Guarantor is organized, or any political subdivision or taxing authority
thereof or therein. As used in (a), (b) and (c) above, references to Holder
shall include a fiduciary, settler, beneficiary, member or shareholder of, or
possessor of a power over, such Holder, if such Holder is an estate, trust,
partnership or corporation.]
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute, full
and unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or such Indenture, any failure
to enforce the provisions of such Security or such Indenture, or any waiver,
modification or indulgence granted to the Issuer with respect thereto, by the
Holder of such Security or the Trustee or any other circumstance which may
otherwise constitute a legal or equitable discharge of a surety or guarantor;
provided, however, that, notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent of the Guarantor, increase
the principal amount of such Security, or increase the interest rate thereon, or
increase any premium payable upon redemption thereof, or alter the Stated
Maturity thereof, or increase the principal amount of any Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 502 of such Indenture.
The Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest or notice with
respect to such Security or the indebtedness evidenced thereby or with respect
to any sinking fund or analogous payment required under such Security and all
demands whatsoever, and covenants that this Guarantee will not be discharged
except by payment in full of the principal of, premium, if any, and interest on
such Security.
24
The Guarantor shall be subrogated to all rights of the Holder of such
Security and the Trustee against the Issuer in respect of any amounts paid to
such Holder by the Guarantor pursuant to the provisions of this Guarantee;
provided, however, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon such right of subrogation
until the principal of, premium, if any, and interest on all Securities of the
same series issued under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of the
Guarantor, which is absolute and unconditional, of the due and punctual payment
of the principal of, premium, if any, and interest on, and any sinking fund or
analogous payments with respect to, the Security upon which this Guarantee is
endorsed.
The obligations of the Guarantor under this Guarantee shall, without
any further act or thing being required to be done or to occur, extend to the
obligations of any successor Person who is not the Guarantor arising in respect
of the Securities by virtue of a substitution pursuant to the Indenture.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication of such Security shall have been manually
executed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture
shall have the meanings assigned to them in such Indenture.
The Guarantee shall be governed by and construed in accordance with the
laws of the State of New York.
Executed and dated the date on the face hereof.
DEUTSCHE TELEKOM AG
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
25
ARTICLE THREE
THE SECURITIES AND GUARANTEES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution of the Issuer and the
Guarantor, as appropriate, or pursuant to other appropriate corporate
authorization, and, subject to Section 303, set forth, or determined in the
manner provided, in an Officer's Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant
to Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) any stock exchange on which the Securities of the series will be
listed;
(4) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(5) the date or dates on which the principal of the Securities of the
series is payable;
(6) 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, the
Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any interest payable on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
1002, the principal of and any premium and interest on Securities of the series
shall be payable, Securities of the series may be surrendered for exchange or
conversion and notices and demands to or upon the Issuer or the Guarantor in
respect of the Securities of the series and this Indenture may be served;
(8) other than with respect to any redemption of Securities pursuant to
Section 1108, the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Issuer or the Guarantor
(including the period following the date referred to in Section 1108) and, if
other than by a Board Resolution, the manner in which any election by the Issuer
to redeem the Securities shall be evidenced;
(9) other than with respect to any redemption of Securities pursuant to
Section 1108, the obligation, if any, of the Issuer to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
26
(10) the terms and conditions for conversion or exchange of Securities
into preference shares of the Guarantor (including, if applicable, the rights,
preferences and privileges of such preference shares) or ordinary shares of the
Guarantor, and the terms of any additional redemption rights of the Issuer
relating to such terms and conditions for conversion or exchange, whether any
such preference shares or ordinary shares may be evidenced by American
Depositary Receipts;
(11) the terms of the guarantees by the Guarantor of conversion of the
Securities of the series into securities of the Guarantor;
(12) the denominations in which any Securities of the series shall be
issuable, if other than denominations of U.S. $1,000 and any integral multiple
thereof;
(13) the currency, currencies, composite currency, composite currencies
or currency units in which payment of the principal of and any premium and
interest on any Securities of the series shall be payable if other than the
currency of the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for purposes
of the definition of "Outstanding" in Section 101;
(14) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index, the
manner in which such amounts shall be determined;
(15) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Issuer, the Guarantor or
a Holder thereof, in one or more currencies, currency units, composite currency
or composite currency units other than that or those in which the Securities are
stated to be payable, the currency, currencies or currency units in which the
principal of and any premium and interest on Securities of such series as to
which such election is made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be made and the amount
so payable (or the manner in which such amount shall be determined);
(16) 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 pursuant to Section 502;
(17) the application, if any, of Section 403 to the Securities of the
series;
(18) if Additional Amounts will not be payable by the Issuer or the
Guarantor;
(19) if the Issuer may from time to time without the consent of the
Holders create and issue further securities having the same terms and conditions
as the Securities in all respects (or in all respects except for the issue date,
the first payment of interest thereon and/or issue price), so that such further
issue shall be consolidated and form a single series with the outstanding
Securities of any series or upon such terms as the Issuer may determine at the
time of their issue;
27
(20) if the Securities of the series are redeemable at the option of
the Issuer, whether the adjusted treasury yield is different from the Adjusted
Treasury Yield as defined and determined herein;
(21) if the principal amount payable at the Stated Maturity of any
Securities of the series is not determinable upon original issuance thereof, the
amount which shall be deemed to be the principal amount of such Securities for
any other purpose hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date (or, in any such case, the
manner in which such principal amount shall be determined);
(22) if applicable, that any Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 204 and, if different from those set
forth in Clause (2) of the last paragraph of Section 305, any circumstances in
which Securities issued upon any exchange may be registered in the name of names
of Persons other than the Depositary for such Global Security or a nominee
thereof;
(23) any addition to or change in the Events of Default which applies
to any Securities of the series and change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof due
and payable pursuant to Section 502;
(24) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identicalexcept
as to denomination, and except as may otherwise be provided in or pursuant to
the Board Resolution referred to above and (subject to Section 303) set forth,
or determined in the manner provided, in the Officer's Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series or the guarantees thereof are
established by action taken pursuant to a Board Resolution of the Issuer or the
Guarantor, a copy of an appropriate record of such action shall be certified by
any director, the Secretary or any person appointed by the Board of Directors of
the Issuer or the Guarantor, as the case may be, each delivered to the Trustee
at or prior to the delivery of the Officer's Certificate setting forth the terms
of the series or the guarantees thereof.
Section 302. Denominations.
The Securities of each series shall be issuable only in registered from
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series shall be issuable in denomination
of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Issuer by two
authorized representatives. The signature of any such authorized representative
may be manual or facsimile.
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Securities or Guarantees bearing the manual or facsimile signatures of
individuals who were at any time the authorized representatives of the Issuer or
the Guarantor, as the case may be, shall bind the Issuer or the Guarantor, as
the case may be, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or Guarantees or did not hold such offices at the date of such
Securities or Guarantees.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities of any series executed by the
Issuer and if applicable, having endorsed thereon Guarantees of the Guarantor to
the Trustee for authentication, together with an Order for the authentication
and delivery of such Securities and, if applicable, an Order from the Guarantor
approving the delivery of the Guarantees endorsed thereon, and the Trustee in
accordance with the Order shall authenticate and deliver such Securities having
such Guarantees endorsed thereon.
If pursuant to Section 301, the Security is to be issued initially
without a Guarantee but such a Guarantee is to be endorsed at a later date, the
Guarantor shall deliver an Order from the Guarantor approving the delivery of
the Guarantees endorsed thereon, and the Trustee in accordance with the Order
shall endorse or shall cause to be endorsed on such Securities the Guarantees
and shall deliver such Securities having such Guarantees endorsed thereon. If
the forms or terms of the Securities of the series, and the Guarantees have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities and Guarantees, and
accepting the additional responsibilities under this Indenture in relation to
such Securities and Guarantees, the Trustee shall receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel and
Officers' Certificate stating,
(a) that such forms or terms have been established in conformity with
the provisions of this Indenture; and
(b) that such Securities and if applicable, Guarantees, when
authenticated and delivered by the Trustee and issued by the Issuer and the
Guarantor in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding obligations of the Issuer
and the Guarantor enforceable in accordance with their terms, subject to such
exceptions as such counsel shall specify.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised in writing by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith shall determine that such action would expose the Trustee to
personal liability based upon the advice of counsel.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 301 or the Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the time of
authentication of each Security of such series if such documents (with
appropriate modifications) are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued and
reasonably contemplate the subsequent issuance of such Securities of such
series.
Each Security shall be dated the date of its authentication.
No Security or Guarantee shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security (or, if applicable, the Guarantee) a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security or Guarantee has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security (or if applicable, the Guarantee) shall have been authenticated and
delivered hereunder but never issued and sold by the Issuer, and the Issuer
shall deliver such Security to the Trustee for cancellation as provided in
Section 309, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
29
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor; provided, however, that a Guarantee shall
not be deemed delivered if pursuant to Section 301 the Security is originally
issued without a Guarantee; if the Guarantee is thereafter attached pursuant to
an Order of the Guarantor, then after authentication of the Guarantee, the
Guarantee shall be deemed delivered. The Trustee in accordance with the Orders
shall authenticate the Guarantee and deliver such Securities.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Issuer may execute, and upon Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities and, if applicable, having endorsed thereon
Guarantees of the Guarantor substantially of the tenor of definitive Guarantees
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Issuer will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Issuer in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor which have endorsed thereon the Guarantees
of the Guarantor. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Issuer shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Issuer in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the Issuer
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount, each such Security having endorsed thereon a Guarantee of the
Guarantor.
30
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like tenor and aggregate principal amount upon surrender of the Securities to
be exchanged at such office or agency. 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 issued upon any registration of transfer or exchange of
Securities and the Guarantees endorsed thereon shall be the valid obligations of
the Issuer and the Guarantor, evidencing the same debt and Guarantees, and
entitled to the same benefits under this Indenture, as the Securities and
Guarantees endorsed thereon surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Issuer or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Issuer shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing or (ii) to register the
transfer of or exchange any Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (A) such Depositary (i) has notified the Issuer and the Guarantor
that it is unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security or (C) there shall exist such other
circumstances, if any, as have been specified for this purpose as contemplated
by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued in
exchange for a Global Security or any portion thereof shall be registered in
such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration or
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof.
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Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Issuer
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount having endorsed thereon a Guarantee and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Issuer, the Guarantor and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Issuer, the Guarantor or the Trustee that such Security has
been acquired by a bona fide purchaser, the Issuer shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount having endorsed thereon a Guarantee and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, 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) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuer and the Guarantor, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest and, at the option of the Issuer, may be paid by check mailed
to the address of the Person as it appears in the Security Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Issuer, at its election in each case,
as provided in Clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Issuer shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Issuer shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Issuer of such Special Record Date and, in the
name and at the expense of the Issuer, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
given to each Holder of Securities of such series the Issuer in the manner set
forth in Section 106, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause (2).
32
(2) The Issuer may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Issuer to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the
Guarantor or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 307) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Issuer, the Guarantor, the Trustee nor any agent of the
Issuer, the Guarantor or the Trustee shall be affected by notice to the
contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Issuer or the
Guarantor may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Issuer or the
Guarantor may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Issuer has not
issued and sold, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of in its customary manner or as directed by an Order.
33
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Issuer in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, 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 shall promptly notify
the Trustee of any change in the "CUSIP" numbers.
34
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Order of the Issuer cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange or conversion of Securities herein expressly provided for, and any
right to receive Additional Amounts) with respect to the Issuer and the
Guarantor, and the Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities of the Issuer theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306, and (ii)
Securities for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer or the Guarantor and thereafter
repaid to the Issuer or the Guarantor, as the case may be, or discharged from
such trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities and not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) 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 or the Guarantor, in the case of (i), (ii) or
(iii) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose money in an amount sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and
any premium and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Issuer or the Guarantor has paid or caused to be paid all other
sums payable hereunder by the Issuer; and
(3) the Issuer has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer and the Guarantor to the Trustee under Section 607,
the obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive such satisfaction and
discharge.
35
Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust
(without liability for interest or investment) and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Issuer or the Guarantor
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with or received by the Trustee or to make
mandatory sinking fund payments or analogous payments as contemplated by Section
403.
Section 403. Defeasance and Discharge of Securities of any Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Securities of any series, then notwithstanding Section 401, the
Issuer and the Guarantor shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of that series, the provisions of
this Indenture as it relates to such Outstanding Securities (except as to the
rights of Holders of Securities to receive, from the trust funds described in
subparagraph (1) below, payment of the principal of (and premium, if any) and
any instalment of principal of (and premium, if any) or interest on such
Securities on the Stated Maturity of such principal or instalment of principal
of (and premium, if any) or interest on or any mandatory sinking fund payments
or analogous payments applicable to the Securities of that series on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities, any rights of Holders of Securities to convert
such Securities, the Issuer's and the Guarantor's obligations with respect to
such Securities and Guarantees, respectively, under Sections 304, 305, 306, 1002
and 1003, and the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the provisions of Section 402 and this Section 403) shall no
longer be in effect ("Defeasance"), and the Trustee, at the expense of the
Issuer, shall, upon the Order of the Issuer or the Guarantor, execute proper
instruments acknowledging the same, provided that the following conditions have
been satisfied:
(1) the Issuer or the Guarantor has deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section
609), irrevocably (irrespective of whether the conditions in subparagraphs (2),
(3), (4), (5) and (6) below have been satisfied, but subject to the provisions
of Section 402 and the last paragraph of Section 1003), as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Securities of that series with reference to this Section 403,
in the case of a series of Securities denominated in United States dollars,
United States money or U.S. Government Obligations, in an amount which, through
the payment of interest and principal in respect thereof in accordance with
their terms, will provide not later than the opening of business on the due date
of any payment referred to in clause (A) or (B) of this subparagraph (1) money
in an amount, or a combination thereof, sufficient, in the opinion of an
internationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge (A)
the principal of (and premium, if any) and interest on such Outstanding
Securities on the Stated Maturity of such principal or instalment of principal
or interest and (B) any mandatory sinking fund payments or analogous payments
applicable to Securities of such series on the day on which such payments are
due and payable in accordance with the terms of this Indenture and of such
Securities;
(2) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Issuer or the Guarantor is a party or by which either is bound;
(3) no Event of Default or event which, with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to the
Securities of that series shall have occurred and be continuing on the date of
such deposit and no Event of Default under Section 501(6) or Section 501(7) or
event which, with the giving of notice or lapse of time, or both, would become
an Event of Default under Section 501(6) or Section 501(7) shall have occurred
and be continuing on the 91st day after such date;
36
(4) the Issuer or the Guarantor has delivered to the Trustee an Opinion
of Counsel that there has been a change in the United States Federal income tax
law to the effect that, or the Issuer or the Guarantor has received from, or
there has been published by, the United States Internal Revenue Service, a
ruling to the effect that, Holders of the Securities of that series will not
recognize income, gain or loss for United States Federal income tax purposes as
a result of such deposit, defeasance and discharge and will be subject to United
States 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;
(5) if the Securities of that series are then listed on the New York
Stock Exchange, Inc., the Issuer or the Guarantor shall have delivered to the
Trustee an Opinion of Counsel to the effect that such deposit, defeasance and
discharge will not cause such Securities to be delisted; and
(6) the Issuer or the Guarantor has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance and discharge of
the entire indebtedness on all Outstanding Securities of any such series as
contemplated by this Section have been complied with.
37
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series of the Issuer, means any one of the following events with respect to
the Issuer or the Guarantor, as the case may be (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):
(1) the Issuer fails to pay principal or interest upon any Security
within 30 days from the relevant due date; or
(2) the Issuer fails duly to perform any other obligation arising from
any Security or the Guarantor fails to perform any obligation arising from the
Guarantee which failure is not capable of remedy or, if such failure is capable
of remedy, such failure continues for more than 60 days after the Trustee has
received notice thereof from a Holder; or
(3) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series or beyond any period of grace provided
with respect thereto; or
(4) (i) any Capital Market Indebtedness of the Issuer or the
Guarantor becomes prematurely repayable as a result of a default in
respect of the terms thereof; or
(ii) the Issuer or the Guarantor fails to fulfill any payment
obligation in excess of euro 25,000,000 or the equivalent thereof under
any Capital Market Indebtedness or under any guarantee or suretyship
given for any Capital Market Indebtedness of any other Person within 30
days from its due date or, in the case of a guarantee or suretyship,
within 30 days after the guarantee or suretyship has been invoked,
unless Issuer or the Guarantor shall contest in good faith that such
payment obligation exists or is due or that such guarantee or suretyship
has been validly invoked; or
(iii) if a security granted in respect of any Capital Market
Indebtedness or any guarantee or suretyship therefor is enforced on
behalf of or by the creditor(s) entitled thereto; or
(5) the Issuer or the Guarantor announces its inability to meet its
financial obligations or ceases its payments; or
(6) a court opens insolvency proceedings against the Issuer or the
Guarantor, or the Issuer or the Guarantor applies for or institutes such
proceedings or offers or makes an arrangement for the benefit of its creditors
generally, or the Issuer applies for a "surseance van betaling" (within the
meaning of the Statute of Bankruptcy of The Netherlands); or
(7) the Issuer or the Guarantor goes into liquidation unless this is
done in connection with a merger, or other form of combination with another
company and such company assumes all obligations contracted by the Issuer or the
Guarantor, as the case may be, in connection with this issue; or
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(8) any governmental order, decree or enactment shall be made in or by
The Netherlands or the Federal Republic of Germany whereby the Issuer or the
Guarantor is prevented from observing and performing in full its obligations as
set forth in this Indenture and in the Guarantee, respectively, and this
situation is not cured within 90 days; or
(9) the Guarantee ceases to be valid and legally binding for any reason
whatsoever; or
(10) any other Event of Default established as contemplated by Section
301 with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series of the
Issuer at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series of the Issuer may declare the principal
amount (or, if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of such series of the
Issuer to be due and payable immediately, by a notice in writing to the Issuer
and the Guarantor (and to the Trustee if given by Holders), specifying and upon
any such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Issuer, the
Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Issuer or the Guarantor has paid or deposited with the Trustee
a sum sufficient to pay:
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed therefor
in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
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Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuer covenants that if
(1) default is made in the payment of any interest or payment of any
additional interest, on any Security when such interest becomes due and payable
and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof (and, if so provided in the
applicable Officer's Certificate, in the case of technical or administrative
difficulties only if the delay persists for a period of five days),
the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and all amounts due the Trustee under
Section 607.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Issuer, the
Guarantor or any other obligor upon the Securities of a series or the property
of the Issuer, the Guarantor or of such other obligor or their creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
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Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal
of and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively; and
THIRD: To the payment of the balance, if any, to the Issuer.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
the Guarantees, the Securities or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(2) such Holder or Holders have offered to the Trustee reasonable
indemnity satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(3) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(4) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and, if
such Security is convertible, to convert such Security in accordance with this
Indenture and to institute suit for the enforcement of such right to convert and
such rights shall not be impaired without the consent of such Holder.
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Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Issuer, the Guarantor, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not follow any such direction if doing so would in
its reasonable discretion either involve it in personal liability or be unduly
prejudicial to Holders not joining in such direction;
provided, further, that the Trustee shall have no obligation to make any
determination with respect to any such conflict, personal liability or undue
prejudice.
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Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series of the Issuer and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series of the Issuer,
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected, or
(3) in the conversion of any Security of such series.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
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, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess reasonable
costs (including legal fees and expenses) against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Issuer or the Guarantor, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series of the Issuer, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or any premium or interest on any
Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date) or for
the enforcement of any right to convert such Security pursuant to this
Indenture.
Section 515. Waiver of Stay or Extension Laws.
Each of the Issuer and the Guarantor covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any usury, stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each of the
Issuer and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act and as specifically set forth in this Indenture.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to such Securities, no such notice to such Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
(whether in its original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper party or parties, whether such paper
or document be delivered in original or by facsimile;
(b) any request or direction of the Issuer or the Guarantor mentioned
herein shall be sufficiently evidenced by an Order and any resolution of the
Board of Directors of the Issuer or the Guarantor may be sufficiently evidenced
by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
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(f) 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 or the Guarantor with reasonable prior
notice, personally or by agent or attorney at the reasonable expense of the
Issuer or the Guarantor and shall incur no liability of any kind by reason of
such inquiry or investigation, provided that the Trustee shall not be entitled
to such information which the Issuer or the Guarantor is prevented from
disclosing as a matter of law or contract;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be within the discretion, rights or
powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer or the Guarantor, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Issuer of Securities or the
proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Issuer or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Issuer and the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on or investment of any money received by it
hereunder except as otherwise agreed with and for the exclusive benefit of the
Issuer or the Guarantor, as the case may be.
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Section 607. Compensation and Reimbursement.
Each of the Issuer and the Guarantor jointly and severally agrees:
(1) to pay to the Trustee from time to time such compensation as shall
be agreed upon in writing from time to time for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except to the extent that any such expense, disbursement or
advance shall have been caused by its negligence or willful misconduct; and
(3) to fully indemnify the Trustee and any predecessor Trustee and
their agents for, and to hold it harmless against, any and all loss, liability,
damages, claims or expense arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder and the performance of its
duties hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent that any such loss,
liability or expense may be attributable to its negligence or willful
misconduct.
The Trustee shall have a lien prior to the Holders to payment of
amounts due it under this Section 607 from funds held by the Trustee hereunder.
"Trustee" for purposes hereof includes any predecessor trustee, but the
negligence or bad faith of any trustee shall not affect the rights of any other
trustee hereunder.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. For this purpose
the Trustee shall not be deemed to have a conflicting interest by reason of
being Trustee for the Securities of any series and Trustee for the Securities of
any other series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to the
Securities of each series of the Issuer which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least U.S.$50,000,000 and its Corporate Trust Office in the
Borough of Manhattan, The City of New York, New York. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee with respect to the Securities of any series shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
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(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Issuer. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition at the reasonable
expense of the Issuer or the Guarantor any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Issuer and the Guarantor. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee
within 30 days after its removal, the removed Trustee may petition at the
reasonable expense of the Issuer or the Guarantor any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Issuer or the Guarantor or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Issuer or the
Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Issuer by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Issuer, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Issuer and the Guarantor
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Issuer. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Issuer or the Holders of
Securities of such series and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
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(f) The Issuer shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to each of the Issuer, the Guarantor and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Issuer, the Guarantor or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series of the Issuer, the
Issuer, the Guarantor, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series of the Issuer shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Issuer and the Guarantor or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates.
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(c) Upon request of any such successor Trustee, the Issuer and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Issuer or Guarantor.
If and when the Trustee shall be or become a creditor of the Issuer or
the Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of Section 311 of the Trust Indenture Act, but only to
the extent therein specified, regarding the collection of claims against the
Issuer or the Guarantor (or any such other obligor). For purposes of Section
311(b)(4) and (6) of such Act, the following terms shall mean:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, xxxx of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Issuer or the Guarantor for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Issuer or the Guarantor
arising from the making, drawing, negotiating or incurring of the draft, xxxx of
exchange, acceptance or obligation.
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial conversion or
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Issuer and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than U.S.$50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Issuer. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Issuer and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
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If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Citibank, N.A.
As Trustee
By____________________________
As Authenticating Agent
By____________________________
Authorized Signatory
Date:______________________
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the Issuer
wishes to have Securities of such series authenticated upon original issuance,
the Trustee, if so requested by the Issuer in writing (which writing need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel),
shall appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by such Issuer with respect of such
series of Securities.
Section 615. Trustee's Application for Instructions from the Issuer.
Any application by the Trustee for written instructions from the Issuer
or the Guarantor may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this Indenture and
the date on and/or after which such action shall be taken or such omission shall
be effective. The Trustee shall not be liable for any action taken by, or
omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date shall
not be less than three Business Days after the date any officer of the Issuer or
the Guarantor actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, ISSUER AND THE GUARANTOR
Section 701. Issuer and Guarantor to Furnish Trustee Names and Addresses of
Holders.
Each of the Issuer and the Guarantor will furnish or cause to be
furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular Record
Date in each year, a list, in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the Issuer or the
Guarantor, or any of the Issuer's Paying Agents other than the Trustee, as to
the names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuer or the Guarantor of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuer, the Guarantor and the Trustee that none of the Issuer,
the Guarantor nor the Trustee nor any agent of any of them shall be held
accountable by reason of any disclosure of information as to names and addresses
of Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) On or about each July 15, beginning July 15, 2001, the Trustee
shall transmit to Holders such reports, if any, dated as of the preceding May
15, concerning the Trustee and its actions under this Indenture as may be
required pursuant to Section 313(a) of the Trust Indenture Act in the manner
provided pursuant to Section 313(c) thereof. The Trustee shall also transmit to
Holders such reports, if any, as may be required pursuant to Section 313(b) of
the Trust Indenture Act at the times and in the manner provided pursuant thereto
and to Section 313(c) thereof.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Issuer. The Issuer will
notify the Trustee reasonably promptly when any Securities are listed on any
stock exchange or delisted therefrom.
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Section 704. Reports by Issuer and Guarantor.
Each of the Issuer and the Guarantor shall file with the Trustee and
the Commission, and transmit to Holders, such information, documents and other
reports, including financial information and statements and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
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).
Section 705. Calculation of Original Issue Discount.
The Issuer shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) 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.
53
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Issuer or Guarantor May Consolidate, Etc., Only on Certain Terms.
Neither the Issuer nor the Guarantor shall consolidate with or merge
(which term shall include for the avoidance of doubt a scheme of arrangement)
into any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and neither the Issuer nor the
Guarantor shall permit any Person to consolidate with or merge into the Issuer
or the Guarantor or convey, transfer or lease its properties and assets
substantially as an entirety to the Issuer or the Guarantor, unless:
(1) in case the Issuer or the Guarantor shall consolidate with or merge
into another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Issuer or the Guarantor is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and
assets of the Issuer or the Guarantor substantially as an entirety shall be a
corporation, partnership or trust, shall be organized and validly existing,
under the laws of the jurisdiction of its organization shall expressly assume,
by an indenture supplemental hereto executed and delivered to the Trustee in
form reasonably satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest (including all Additional Amounts and
any additional amounts payable pursuant to subsection (3) below) on all the
Securities and the performance or observance of every covenant of this Indenture
on the part of the Issuer to be performed or observed, and, in the case of the
Guarantor, the due and punctual performance of the Guarantees (including all
Additional Amounts and any additional amounts payable pursuant to subsection (3)
below) and the performance of every covenant of this Indenture on the part of
the Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Issuer or the Guarantor as a
result of such transaction as having been incurred by the Issuer or the
Guarantor at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing;
(3) the Person formed by such consolidation or into which the Issuer or
the Guarantor is merged or to whom the Issuer or the Guarantor has conveyed,
transferred or leased its properties or assets (if such Person is organized and
validly existing under the laws of a jurisdiction other than the United States,
any State thereof, or the District of Columbia) agrees to indemnify the Holder
of each Security against (a) any tax, assessment or governmental charge imposed
on any such Holder or required to be withheld or deducted from any payment to
such Holder as a consequence of such consolidation, merger, conveyance, transfer
or lease; and (b) any costs or expenses of the act of such consolidation,
merger, conveyance, transfer or lease; and
(4) the Issuer or the Guarantor, as the case may be, has delivered to
the Trustee an Officer's Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
54
Section 802. Successor Substituted.
Upon any consolidation of the Issuer or the Guarantor with, or merger
of the Issuer or the Guarantor into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Issuer or the Guarantor
substantially as an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which the Issuer or the Guarantor is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Issuer or
the Guarantor, as the case may be, under this Indenture with the same effect as
if such successor Person had been named as the Issuer or the Guarantor herein,
as the case may be, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
Section 803. Assumption by Guarantor or Subsidiary of Issuer's Obligations.
The Guarantor or any Subsidiary of the Guarantor may assume the
obligations of the Issuer (or any Person which shall have previously assumed the
obligations of the Issuer) for the due and punctual payment of the principal of
(and premium, if any), interest on and any other payments with respect to the
Securities, for the due and punctual conversion of the Securities in accordance
with this Indenture and for the performance of every covenant of this Indenture
and the Securities on the part of the Issuer to be performed or observed,
provided that:
(1) the Guarantor or such Subsidiary, as the case may be, shall
expressly assume such obligations by an indenture supplemental hereto, in form
reasonably satisfactory to the Trustee, executed and delivered to the Trustee
and if such Subsidiary assumes such obligations, the Guarantor shall, by such
supplemental indenture, confirm that its Guarantees shall apply to such
Subsidiary's obligations under the Securities and this Indenture, as modified by
such supplemental indenture;
2) the Guarantor or such Subsidiary, as the case may be, shall agree in
such supplemental indenture, to the extent provided in the Securities and
subject to the limitations and exceptions set forth below, that if any deduction
or withholding for any present or future taxes or other governmental charges of
the Relevant Jurisdiction shall at any time be required by the Relevant
Jurisdiction in respect of any amounts to be paid by the Guarantor or such
Subsidiary, as the case may be, to a Holder, the Guarantor or such Subsidiary,
as the case may be, will pay to the Holder of a Security as additional interest
such additional amounts as may be necessary in order that the net amounts paid
to such Holder of such Security shall be not less than the amounts specified in
such Security to which such Holder is entitled; provided, however, that the
Guarantor or Subsidiary, as the case may be, shall not be required to make any
payment of additional amounts for or on account of:
(a) any tax or other governmental charge which would not have
been imposed but for the existence of any present or former connection between
such Holder and the Relevant Jurisdiction (other than the mere holding of a
Security and a receipt of payments thereon), including, without limitation, such
Holder being or having been a citizen or resident thereof or being or having
been present or engaged in trade or business therein or having or having had a
permanent establishment therein;
(b) any tax or other governmental charge which would not have
been imposed but for the status of such Holder as an individual resident of a
member state of the European Union;
(c) any tax or other governmental charge that would not have
been imposed but for a failure to comply with any applicable certification,
information, identification, documentation or other reporting requirements
concerning the nationality, residence, identity or connection with the Relevant
Jurisdiction if such compliance is required as a precondition to relief or
exemption from such tax or other governmental charge (including without
limitation a certification that such Holder is not resident in the Relevant
Jurisdiction);
55
(d) any tax or other governmental charge which would not have
been imposed but for a change in law that becomes effective more than 30 days
after a payment by the Guarantor or Subsidiary, as the case may be, becomes due
and payable, or is duly provided for and notice thereof is duly published,
whichever occurs later;
(e) any tax or other governmental charge required to be
withheld by any Paying Agent from a payment on a Security, if such payment can
be made without such deduction or withholding by any other Paying Agent; or
(f) any combination of items (a), (b), (c), (d) and (e) above.
The foregoing provisions shall apply mutatis mutandis to any
withholding or deduction for or on account of any present or future taxes or
governmental charges of whatever nature of any jurisdiction is which any
successor Person to the Guarantor or such Subsidiary is organized, or any
political subdivision or taxing authority thereof or therein. As used in (a),
(b) and (c) above, references to Holder shall include a fiduciary, settler,
beneficiary, member or shareholder of, or possessor of a power over, such
Holder, if such Holder is an estate, trust, partnership or corporation.
(3) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing; and
(4) the Guarantor or such Subsidiary, as the case may be, shall have
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that such assumption and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
Upon any such assumption, the Guarantor or such Subsidiary 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 the Guarantor or such
Subsidiary had been named as an "Issuer" herein, and the Person named as an
"Issuer" in the first paragraph of this instrument or any successor Person which
shall theretofore have become such in the manner prescribed in this Article
shall be released from its liability as obligor upon the Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Issuer, when authorized by a
Board Resolution, the Guarantor, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the Issuer or the
Guarantor and the assumption by any such successor of the covenants of the
Issuer or the Guarantor herein and in the Securities or Guarantees or to add
another Issuer to this Indenture for future issuances; or
(2) to add to the covenants of the Issuer or of the Guarantor for the
benefit of the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Issuer or
the Guarantor; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events of
Default are to be for the benefit of less than all series of Securities, stating
that such additional Events of Default are expressly being included solely for
the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons or to permit or facilitate the issuance of Securities
in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (i) shall neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding; or
(6) to add Guarantees to the Securities of any series to which the
Guarantees shall not have already been attached; or
(7) to secure the Securities pursuant to Section 1009; or
(8) to establish the form or terms of Securities of any series and the
Guarantees thereof, each as permitted by Sections 201 and 301; or
(9) 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
611(b); or
(10) to reduce the conversion price of the Securities of any series
other than pursuant to this Indenture; or
57
(11) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture, provided that such action pursuant to this clause (11) shall not
adversely affect the interests of the Holders of Securities of any series in any
material respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Issuer, the
Guarantor and the Trustee, the Issuer, when authorized by a Board Resolution or
other appropriate corporate authorization, the Guarantor, when authorized by a
Board Resolution or other appropriate corporate authorization, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change any obligation of the Issuer or the Guarantor to
pay Additional Amounts (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or the coin or
currency in which, any Security or any premium or interest thereon is payable,
or modify or affect in any manner adverse to the interests of the Holders of
Securities of any series the conversion rights of such Securities, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date) or of any such right of conversion, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1011, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby, provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1010, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and 901(9), or
(4) modify or affect in any manner adverse to the interests of the
Holders of any Securities the terms and conditions of the obligations of the
Guarantor in respect of the due and punctual payment of the principal thereof
(and premium, if any) and interest, if any, thereon or any sinking fund payments
provided in respect thereof or the obligations of the Guarantor in respect of
any rights of conversion of any Securities.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
58
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby, except as otherwise expressed therein.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as in effect at the time
of the execution thereof.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Issuer and the
Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Issuer and the Guarantor, to any
such supplemental indenture may be prepared and executed by the Issuer, the
Guarantees of the Guarantor may be endorsed thereon and such securities may be
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
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ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Issuer covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Issuer will maintain in each Place of Payment for any series an
office or agency where Securities of that series may be presented or surrendered
for payment, where Securities of that series may be surrendered for registration
of transfer, exchange or conversion and where notices and demands to or upon the
Issuer in respect of the Securities of that series and this Indenture may be
served.
Each of the Issuer and the Guarantor will give prompt written notice to
the Trustee of the location, and any change in the location, of any such office
or agency. If at any time the Issuer or the Guarantor shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee and the Issuer and the
Guarantor hereby appoint the same as its agent to receive all such
presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Issuer of its obligation to maintain an office
or agency in each place of payment for Securities of any series for such
purposes. The Issuer will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Issuer or the Guarantor shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due
date of the principal of or any premium or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, 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 for any series of Securities
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 (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Issuer (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
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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 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 or the Guarantor, in trust for the payment of the principal of or
any premium or interest on any Security of any series and remaining unclaimed
for two years after such principal, premium or interest has become due and
payable shall be paid to the Issuer on its Order, or (if then held by the Issuer
or the Guarantor) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Issuer or the Guarantor 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 or the Guarantor as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Issuer cause to be published once,
in an Authorized Newspaper in each Place of Payment, 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 1004. Additional Amounts.
Unless otherwise specified in any Board Resolution or other appropriate
corporate authorization of the Issuer or the Guarantor establishing the terms of
Securities of a series or the Guarantees relating thereto in accordance with
Section 301, if any deduction or withholding for any present or future taxes or
other governmental charges of the jurisdiction (or any political subdivision or
taxing authority thereof or therein) in which the Issuer or the Guarantor is
incorporated, shall at any time be required by such jurisdiction (or any such
political subdivision or taxing authority) (each a "Relevant Jurisdiction") in
respect of any amounts to be paid by the Issuer of principal of or interest on a
Security of any series, or by the Guarantor under the Guarantees, the Issuer or
the Guarantor, as the case may be, will pay to the Holder of a Security of such
series such additional amounts as may be necessary in order that the net amounts
paid to such Holder of such Security shall be not less than the amounts
specified in such Security or coupon to which such Holder is entitled; provided,
however, that the Issuer or the Guarantor, as the case may be, shall not be
required to make any payment of additional amounts for or on account of: (a) any
tax or other governmental charge which would not have been imposed but for the
existence of any present or former connection between such Holder and the
Relevant Jurisdiction (other than the mere holding of a Security and the receipt
of payments thereon), including, without limitation, such Holder being or having
been a citizen or resident thereof or being or having been present or engaged in
trade or business therein or having or having had a permanent establishment
therein; (b) any tax or other governmental charge which would not have been
imposed but for the status of such Holder as an individual resident of a member
state of the European Union; (c) any tax or other governmental charge that would
not have been imposed but for a failure to comply with any applicable
certification, information, identification, documentation or other reporting
requirements concerning the nationality, residence, identity or connection with
the Relevant Jurisdiction if such compliance is required as a precondition to
relief or exemption from such tax or other governmental charge (including
without limitation a certification that such Holder is not resident in the
Relevant Jurisdiction); (d) any tax or other governmental charge which would not
have been imposed but for a change in law that becomes effective more than 30
days after a payment by the Issuer on a Security of any series, or by the
Guarantor under the Guarantees, as the case may be, becomes due and payable, or
is duly provided for and notice thereof is duly published, whichever occurs
later; (e) any tax or other governmental charge required to be withheld by any
Paying Agent from a payment on a Security, if such payment can be made without
such deduction or withholding by any other Paying Agent; or (f) any combination
of items (a), (b), (c), (d) and (e) above. The foregoing provisions shall apply
mutatis mutandis to any withholding or deduction for or on account of any
present or future taxes or governmental charges of whatever nature of any
jurisdiction in which any successor Person to the Issuer or the Guarantor, as
the case may be, is organized, or any political subdivision or taxing authority
thereof or therein; provided, however, that such payment of additional amounts
may be subject to such further exceptions as may be established in the terms of
such Securities established as contemplated by Section 301. As used in (a), (b)
and (c) above, references to Holder shall include a fiduciary, settler,
beneficiary, member or shareholder of, or possessor of a power over, such
Holder, if such Holder is an estate, trust, partnership or corporation. Subject
to the foregoing provisions, whenever in this Indenture there is mentioned, in
any context, the payment of the principal of or any premium or interest on, or
in respect of, any Security of any series or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
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If the terms of the Securities of a series established as contemplated
by Section 301 do not specify that additional amounts pursuant to the Section
will not be payable by the Issuer or the Guarantor, at least 10 days prior to
the first Interest Payment Date with respect to that series of Securities (or if
the Securities of that series will not bear interest prior to Maturity, the
first day on which a payment of principal and any premium is made), and at least
10 days prior to each date of payment of principal and any premium or interest
if there has been any change with respect to the matters set forth in the
below-mentioned Officer's Certificate, the Issuer will furnish the Trustee and
the Issuer's principal Paying Agent or Paying Agents, if other than the Trustee,
with an Officer's Certificate instructing the Trustee and such Paying Agent or
Paying Agents whether such payment of principal of and any premium or interest
on the Securities of that series shall be made to Holders of Securities of that
series without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of that series. If any such
withholding shall be required, then such Officer's Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities and the Issuer or the Guarantor, as the case may be, will
pay to the Trustee or such Paying Agent or Paying Agents the additional amounts
required by this Section. Each of the Issuer and the Guarantor covenant to
indemnify each of the Trustee and any Paying Agent for, and to hold each of them
harmless against, any loss, liability or expense arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officer's
Certificate furnished pursuant to this Section, except to the extent that any
such loss, liability or expense is due to its own negligence or bad faith.
Section 1005. Statement by Officers as to Default.
Each of the Guarantor and the Issuer of Outstanding Securities will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Guarantor ending after the date hereof, an Officer's Certificate, stating
whether or not to the best knowledge of the signers thereof the Issuer or the
Guarantor, as the case may be, is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and, if the
Issuer or the Guarantor shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge.
Each of the Issuer and the Guarantor shall deliver to the Trustee, as
soon as possible and in any event within ten days after the Issuer or the
Guarantor becomes aware of the occurrence of any Event of Default or an event
which, with notice or the lapse of time or both, would constitute an Event of
Default, an Officers' Certificate setting forth the details of such Event of
Default or default and the action which the Issuer proposes to take with respect
thereto.
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Section 1006. Existence.
Subject to Article Eight, the Issuer and the Guarantor each 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; provided,
however, that the Issuer and the Guarantor shall not be required to preserve any
such right or franchise if its respective Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Issuer or the Guarantor, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1007. Maintenance of Properties.
The Issuer and the Guarantor each 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 or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be, from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Issuer or the Guarantor, as the case
may be, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Holders.
Section 1008. Payment of Taxes and Other Claims.
The Issuer and the Guarantor each will pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Issuer, the
Guarantor or any Subsidiary or upon the income, profits or property of the
Issuer, the Guarantor or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Issuer, the Guarantor or any Subsidiary; provided, however, that
the Issuer or the Guarantor, as the case shall be, 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 1009. Limitation on Liens.
So long as any of the Securities are Outstanding, but only up to the
time all amounts of principal and interest have been placed at the disposal of
the Trustee, neither the Issuer nor the Guarantor shall grant or permit to
subsist any Encumbrance over any or all of its present or future assets, to
secure any present or future Capital Market Indebtedness issued or guaranteed by
the Issuer, the Guarantor or by any other Person without making effective
provision whereby the Securities shall be secured equally and ratably with such
Capital Market Indebtedness, so long as such Capital Market Indebtedness shall
be so secured.
Section 1010. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Issuer and the Guarantor may, with respect to the
Securities of any series, omit in any particular instance to comply with any
term, provision or condition set forth in any covenant provided pursuant to
Section 301(24), 901(2) or 901(8) for the benefit of the Holders of Securities
of such series or in Section 1009 or any term, provision or condition set forth
in an indenture supplemental hereto, if before the time for such compliance the
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Holders of at least a majority in principal amount of the Outstanding Securities
of such series shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Issuer and the Guarantor and the duties
of the Trustee in respect of any such term, provision or condition shall remain
in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities of any series or
issuance shall be evidenced by a Board Resolution. In case of any redemption at
the election of the Issuer of all or less than all the Securities of any series
(including any such redemption affecting only a single Security), the Issuer
shall, at least 60 days prior to the Redemption Date fixed by the Issuer (unless
a shorter notice shall be reasonably satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture the Issuer shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of Securities of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination which shall not be less than the minimum
authorized denomination for such Security. If less than all of the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence, and
the Trustee shall promptly notify the Issuer in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amounts thereof to be redeemed.
The provisions of the preceding paragraph shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date to each Holder of Securities to be redeemed at his or her address appearing
in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, plus accrued interest, if any,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the identification
(and, in the case of partial redemption of any Securities, the principal
amounts) of the particular Securities to be redeemed and if less than all the
Outstanding Securities of any series consisting of a single Security are to be
redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price, plus accrued
interest, if any, will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price, plus accrued interest, if any,
(6) that the redemption is for a sinking fund, if such is the case, and
(7) the current conversion price and the date on which the right to
convert such Securities or portions thereof will expire.
(8) the CUSIP number or numbers, if any, with respect to such
Securities.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Issuer shall deposit with the Trustee
or with a Paying Agent (or, if the Issuer or the Guarantor is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed (other than those theretofore surrendered
for conversion) on that date.
If the Securities of any series are redeemable at the option of the
Issuer then, upon redemption, the Issuer shall pay a Redemption Price equal to
the greater of:
(1) 100% of the principal amount and premium, if any, of the Securities
of such series plus accrued interest to the Redemption Date; or
(2) as determined by the Quotation Agent, the sum of the present values
of the remaining scheduled payments of principal, premium, if any, and interest
on the Securities of such series (not including any portion of such payments of
interest accrued as of the Redemption Date). Such present values shall be
determined by discounting the remaining principal, premium, if any, and interest
payments to the Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), using the Adjusted Treasury Yield.
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Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Issuer shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Issuer at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Issuer or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Issuer and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Issuer shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
Section 1108. Optional Redemption Due to Changes in Tax Treatment.
Each series of Securities contained in one or more particular issues
may be redeemed at the option of the Issuer or the Guarantor, in whole but not
in part, at any time (except in the case of Securities that have a variable rate
of interest, which may be redeemed on any Interest Payment Date) at a Redemption
Price equal to the principal amount thereof plus accrued interest to the date
fixed for redemption (except in the case of Outstanding Original Issue Discount
Securities which may be redeemed at the Redemption Price specified by the terms
of such series of Securities) if, as a result of any change in or amendment to
the laws or any regulations or rulings promulgated thereunder of the
jurisdiction (or of any political subdivision or taxing authority thereof or
therein) in which the Issuer or the Guarantor is incorporated (or, in the case
of a successor Person to the Issuer or the Guarantor, of the jurisdiction in
which such successor Person is organized or any political subdivision or taxing
authority thereof or therein) or any change in the official application or
interpretation of such laws, regulations or rulings, or any change in the
official application or interpretation of, or any execution of or amendment to,
any treaty or treaties affecting taxation to which such jurisdiction or such
political subdivision or taxing authority (or such other jurisdiction or
political subdivision or taxing authority) is a party, which change, execution
or amendment becomes effective on or after the date specified for such series
pursuant to the terms of the Security (or in the case of a successor Person to
the Issuer or the Guarantor, the date on which such successor Person became such
pursuant to Sections 801 and 802 or in the case of an assumption by the
Guarantor or its Subsidiary of obligations of the Issuer under the Securities
pursuant to Section 803, the date of such assumption), (i) the Issuer or the
Guarantor (or such successor Person or such Subsidiary) is or would be required
to pay additional amounts with respect to the Securities or the Guarantees, as
the case may be, on the next succeeding Interest Payment Date as described in
Section 206 or Section 1004 or (ii) the Guarantor or any Subsidiary of the
Guarantor is or would be required to deduct or withhold tax on any payment to
the Issuer to enable the Issuer to make any payment of principal, premium, if
any, or interest and, in each case, the payment of such additional amounts in
the case of (i) above or such deductions or withholding in the case of (ii)
above cannot be avoided by the use of any reasonable measures available to the
Issuer, the Guarantor or the Subsidiary. Prior to the giving of notice of
redemption of such Securities pursuant to this Indenture, the Issuer or the
Guarantor will deliver to the Trustee an Officer's Certificate, stating that the
Issuer or the Guarantor is entitled to effect such redemption and setting forth
in reasonable detail a statement of circumstances showing that the conditions
precedent to the right of the Issuer or the Guarantor to redeem such Securities
pursuant to this Section have been satisfied.
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Further, if, pursuant to Section 801(3)(a) of this Indenture, a Person
into which the Issuer or the Guarantor is merged or to whom the Issuer or the
Guarantor has conveyed, transferred or leased its properties or assets has been
or would be required to pay any additional amounts as therein provided, each
series of Securities may be redeemed at the option of such Person in whole, but
not in part, at any time (except in the case of Securities that have a variable
rate of interest, which may be redeemed on any Interest Payment Date), at a
redemption price equal to the principal amount thereof plus accrued interest to
the date fixed for redemption (except in the case of Outstanding Original Issue
Discount Securities which may be redeemed at the Redemption Price specified by
the terms of such series of Securities). Prior to the giving of notice of
redemption of such Securities pursuant to this Indenture, such Person shall
deliver to the Trustee an Officer's Certificate, stating that such Person is
entitled to effect such redemption and setting forth in reasonable detail a
statement of circumstances showing that the conditions precedent to the right of
such Person to redeem such Securities pursuant to this Section have been
satisfied.
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ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
An Issuer (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Issuer pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Securities; provided that the Securities to be credited have not been previously
so credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the Redemption Price, as specified in the
Securities so to be redeemed, for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Issuer will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 50 days prior to each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Issuer in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
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* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
__________________________
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed on their respective behalves, all as of the day and year first
above written.
DEUTSCHE TELEKOM INTERNATIONAL FINANCE B.V.
By: /s/ YORK XXX XXXXXX
-----------------------------------
Name:
Title:
By: /s/ XXXXXX XXXX
-----------------------------------
Name:
Title:
DEUTSCHE TELEKOM AG
By: /s/ ppa. XXXXXX XXXXXXXXXXXX
-----------------------------------
Name:
Title:
By: /s/ ppa. ROLF MUEKSCHEL
-----------------------------------
Name:
Title:
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CITIBANK, N.A.
By: /s/ XXXXX XXXXX
-----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
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