EXHIBIT 4.2
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TEXAS INSTRUMENTS INCORPORATED
AND
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, Trustee
INDENTURE
Dated as of December 16, 1999
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SUBORDINATED SECURITIES
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined...........................................1
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally.................................................9
SECTION 2.02. Form of Trustee's Certificate of Authentication................10
SECTION 2.03. Amount Unlimited; Issuable in Series...........................10
SECTION 2.04. Authentication and Delivery of Securities......................13
SECTION 2.05. Execution of Securities........................................15
SECTION 2.06. Certificate of Authentication..................................15
SECTION 2.07. Denomination and Date of Securities; Payments of Interest......16
SECTION 2.08. Registration, Transfer and Exchange............................17
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities......20
SECTION 2.10. Cancellation of Securities; Destruction Thereof................22
SECTION 2.11. Temporary Securities...........................................22
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest..............................23
SECTION 3.02. Offices for Payments, Etc......................................23
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee.............25
SECTION 3.04. Paying Agents..................................................25
SECTION 3.05. Written Statement to Trustee...................................26
SECTION 3.06. Limitation on Liens............................................26
SECTION 3.07. Limitation on Sale and Leaseback...............................28
SECTION 3.08. Luxembourg Publications........................................30
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ARTICLE 4
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.01. Issuer to Furnish Trustee Information as to Names and Addresses
of Securityholders...................................................30
SECTION 4.02. Reports by the Issuer..........................................31
SECTION 4.03. Reports by the Trustee.........................................31
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration of Maturity; Waiver of
Default..............................................................31
SECTION 5.02. Collection of Debt by Trustee; Trustee May Prove Debt..........34
SECTION 5.03. Application of Proceeds........................................36
SECTION 5.04. Suits for Enforcement..........................................37
SECTION 5.05. Restoration of Rights on Abandonment of Proceedings............37
SECTION 5.06. Limitations on Suits by Securityholders........................38
SECTION 5.07. Unconditional Right of Securityholders to Institute Certain Suits
....................................................................38
SECTION 5.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default...........................................................39
SECTION 5.09. Control by Holders of Securities...............................39
SECTION 5.10. Waiver of Past Defaults........................................40
SECTION 5.11. Trustee to Give Notice of Default, but May Withhold in Certain
Circumstances........................................................40
SECTION 5.12. Right of Court to Require Filing of Undertaking to Pay Costs...41
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default.....................................................41
SECTION 6.02. Certain Rights of the Trustee..................................43
SECTION 6.03. Trustee Not Responsible for Recitals, Disposition of Securities
or Application of Proceeds Thereof...................................44
SECTION 6.04. Trustee and Agents May Hold Securities or Coupons; Collections,
Etc..................................................................44
SECTION 6.05. Moneys Held by Trustee.........................................44
SECTION 6.06. Compensation and Indemnification of Trustee and its Prior Claim
....................................................................45
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SECTION 6.07. Right of Trustee to Rely on Officers' Certificate, Etc.........45
SECTION 6.08. Indentures Creating Potential Conflicting Interests for the
Trustee..............................................................46
SECTION 6.09. Persons Eligible for Appointment as Trustee....................46
SECTION 6.10. Resignation and Removal; Appointment of Successor Trustee......46
SECTION 6.11. Acceptance of Appointment by Successor Trustee.................48
SECTION 6.12. Merger, Conversion, Consolidation, or Succession to Business of
Trustee..............................................................49
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action Taken by Securityholders....................50
SECTION 7.02. Proof of Execution of Instruments and of Holding of Securities
....................................................................50
SECTION 7.03. Holders to Be Treated as Owners................................51
SECTION 7.04. Securities Owned by Issuer Deemed Not Outstanding..............52
SECTION 7.05. Right of Revocation of Action Taken............................53
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Securityholders.....53
SECTION 8.02. Supplemental Indentures With Consent of Securityholders........54
SECTION 8.03. Effect of Supplemental Indenture...............................56
SECTION 8.04. Documents to Be Given to Trustee...............................56
SECTION 8.05. Notation on Securities in Respect of Supplemental Indentures...57
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Issuer May Consolidate, Etc., on Certain Terms.................57
SECTION 9.02. Successor Issuer Substituted...................................58
SECTION 9.03. Opinion of Counsel and Officers' Certificate to Trustee........58
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.01. Satisfaction and Discharge of Indenture.......................59
SECTION 10.02. Application by Trustee of Funds Deposited for Payment of
Securities...........................................................62
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SECTION 10.03. Repayment of Moneys Held by Paying Agent......................62
SECTION 10.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years........................................................62
SECTION 10.05. Indemnity for U.S. Government Obligations.....................63
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability.....................................63
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons....................................63
SECTION 11.03. Successors and Assigns of Issuer Bound by Indenture...........64
SECTION 11.04. Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons...............................................64
SECTION 11.05. Officers' Certificates and Opinions of Counsel; Statements to Be
Contained Therein....................................................65
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays...............66
SECTION 11.07. Conflict of Any Provision of Indenture with Trust Indenture Act
of 1939..............................................................67
SECTION 11.08. New York Law to Govern........................................67
SECTION 11.09. Counterparts..................................................67
SECTION 11.10. Effect of Headings............................................67
SECTION 11.11. Securities in a Foreign Currency or in euro...................67
SECTION 11.12. Judgment Currency.............................................68
ARTICLE 12
SUBORDINATION OF SECURITIES
SECTION 12.01. Agreement of Subordination....................................69
SECTION 12.02. Payments to Securityholders...................................69
SECTION 12.03. Subrogation of Securities.....................................71
SECTION 12.04. Authorization by Securityholders..............................72
SECTION 12.05. Notice to Trustee.............................................72
SECTION 12.06. Trustee's Relation to Senior Indebtedness.....................73
SECTION 12.07. No Impairment of Subordination................................73
SECTION 12.08. Rights of Trustee.............................................74
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ARTICLE 13
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 13.01. Applicability of Article......................................74
SECTION 13.02. Notice of Redemption; Partial Redemptions.....................74
SECTION 13.03. Conversion Arrangement on Call for Redemption.................76
SECTION 13.04. Payment of Securities Called for Redemption...................77
SECTION 13.05. Exclusion of Certain Securities from Eligibility for Selection
for Redemption.......................................................78
SECTION 13.06. Mandatory and Optional Sinking Funds..........................78
ARTICLE 14
CONVERSION OF SECURITIES
SECTION 14.01. Applicability of Article......................................81
SECTION 14.02. Exercise of Conversion Privilege..............................81
SECTION 14.03. Fractional Interests..........................................83
SECTION 14.04. Adjustment of Conversion Price................................84
SECTION 14.05. Continuation of Conversion Privilege in Case of
Reclassification, Reorganization, Change, Merger, Consolidation
or Sale of Assets...................................................87
SECTION 14.06. Notice of Certain Events......................................88
SECTION 14.07. Taxes on Conversion...........................................89
SECTION 14.08. Issuer to Provide Common Stock................................89
SECTION 14.09. Disclaimer of Responsibility for Certain Matters..............90
SECTION 14.10. Return of Funds Deposited for Redemption of Converted
Securities...........................................................91
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THIS INDENTURE, dated as of December 16, 1999 between TEXAS INSTRUMENTS
INCORPORATED, a Delaware corporation (the "Issuer"), and CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, a national banking corporation (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer may from time to time duly authorize the issue of
its unsecured subordinated debentures, notes or other evidences of indebtedness
to be issued in one or more series (the "Securities") up to such principal
amount or amounts as may from time to time be authorized in accordance with the
terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities and of the Coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
The words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision. The terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular.
"Attributable Debt" shall have the meaning set forth in Section 3.07.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition), in the case of the United Kingdom, will, if practicable, be the
Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Issuer to have been duly
adopted by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act of 1939, then the body performing such duties on such date.
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"Common Stock" means shares of common stock, par value $1.00 per share,
of the Issuer as the same exists at the date of execution and delivery of this
Indenture or as such stock may be reconstituted from time to time.
"Composite Rate" means, at any time, the rate of interest, per annum,
compounded semiannually, equal to the sum of the rates of interest borne by the
Securities of each series (as specified on the face of the Securities of each
series; provided, that, in the case of the Securities with variable rates of
interest, the interest rate to be used in calculating the Composite Rate shall
be the interest rate applicable to such Securities at the beginning of the year
in which the Composite Rate is being determined and provided, further, that, in
the case of Securities which do not bear interest, the interest rate to be used
in calculating the Composite Rate shall be a rate equal to the yield to maturity
on such Securities, calculated at the time of issuance of such Securities)
multiplied, in the case of each series of Securities, by the percentage of the
aggregate principal amount of the Securities of all series Outstanding
represented by the Outstanding Securities of such series. For the purposes of
this calculation, the aggregate principal amounts of Outstanding Securities that
are denominated in a foreign currency, shall be calculated in the manner set
forth in Section 11.11.
"Consolidated Net Tangible Assets" means, at any date, the total assets
appearing on the audited annual consolidated balance sheet of the Issuer and its
Subsidiaries for the Issuer's most recently completed fiscal year, prepared in
accordance with generally accepted accounting principles, less (a) all current
liabilities as shown on such balance sheet, and (b) intangible assets.
"Intangible assets" means the value (net of applicable reserves), as shown on or
reflected in such balance sheet, of: (i) all trade names, trademarks, licenses,
patents, copyrights and goodwill; (ii) organizational or development costs;
(iii) deferred charges (other than prepaid items such as insurance, taxes,
interest, commissions, rents and similar items and tangible assets being
amortized); and (iv) unamortized debt discount and expenses, less unamortized
premium; but in no event shall the term "intangible assets" include computer
programs and related products.
"Conversion Price" means the principal amount of the Securities of a
series convertible into one share of Common Stock, subject to adjustment in
accordance with Section 14.04.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000.
"Coupon" means any interest coupon appertaining to a Security.
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"Debt" of any Person means any debt for money borrowed which is
created, assumed, incurred or guaranteed in any manner by such Person or for
which such Person is otherwise responsible or liable, and shall expressly
include any such guaranty thereof by such Person. For the purpose of computing
the amount of any Funded Debt or other Debt of any Person there shall be
excluded all Debt of such Person for the payment or redemption or satisfaction
of which money or securities (or evidences of such Debt, if permitted under the
terms of the instrument creating such Debt) in the necessary amount shall have
been deposited in trust with the proper depositary, whether upon or prior to the
maturity or the date fixed for redemption of such Debt; and, in any instance
where Debt is so excluded, for the purpose of computing the assets of such
Person there shall be excluded the money, securities or evidences of Debt
deposited by such Person in trust for the purpose of paying or satisfying such
Debt.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Issuer pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Dollar" means the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
"Event of Default" means any event or condition specified as such in
Section 5.01.
"Exempted Debt" means the sum of the following items outstanding as of
the date Exempted Debt is being determined: (i) Debt of the Issuer and its
Subsidiaries incurred after the date of this Indenture and secured by liens
created, assumed or permitted to exist pursuant to Section 3.06(b) and (ii)
Attributable Debt of the Issuer and its Subsidiaries in respect of all sale and
leaseback transactions entered into pursuant to Section 3.07(b), including
amounts considered to be Attributable Debt pursuant to Section 3.07(a)(iii)(B).
"Foreign Currency" means a currency issued by the government of a
country other than the United States.
"Funded Debt" means all Debt whether incurred, assumed or guaranteed,
including purchase money indebtedness, maturing by its terms more than one year
4
from the date of creation thereof or which is renewable or extendable at the
sole option of the obligor in such manner that it may become payable more than
one year from the date of creation thereof.
"Holder", "holder of Securities", "Securityholder" or other similar
terms mean (a) in the case of any Registered Security, the Person in whose name
such Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means Texas Instruments Incorporated and, subject to Article
9, its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer.
"Mortgage" has the meaning set forth in Section 3.06.
"Officers' Certificate" means a certificate signed by the chairman of
the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314 of
the Trust Indenture Act of 1939 and shall include the statements provided for in
Section 11.05.
"Opinion of Counsel" means an opinion in writing signed by the general
corporate counsel or such other legal counsel who may be an employee of or
counsel to the Issuer and who shall be satisfactory to the Trustee. Each such
opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and
shall include the statements provided for in Section 11.05, if and to the extent
required hereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof)
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for which such Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.01.
"Outstanding", when used with reference to Securities, shall, subject
to the provisions of Section 7.04 mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section 10.01)
in the necessary amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such Securities
(if the Issuer shall act as its own paying agent); provided, that if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant to the
terms of Section 2.09 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by a
Person in whose hands such Security is a legal, valid and binding obligation of
the Issuer), Securities converted into Common Stock pursuant hereto and
Securities not deemed outstanding pursuant to Section 13.02.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.01.
"Person" means any individual, corporation, partnership, limited
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
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"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Principal Manufacturing Property" means each manufacturing or
processing plant or facility of the Issuer or a Subsidiary located in the United
States of America (other than its territories and possessions) or Puerto Rico;
except any such manufacturing or processing plant or facility which the Board of
Directors by resolution reasonably determines not to be of material importance
to the total business conducted by the Issuer and its consolidated Subsidiaries.
"Registered Global Security", means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.04, and bearing the legend prescribed in Section
2.04.
"Registered Security" means any Security registered on the Security
register of the Issuer.
"Responsible Officer", when used with respect to the Trustee, means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
the cashier, the secretary, the treasurer, any trust officer, any assistant
trust officer, any assistant vice president, any assistant cashier, any
assistant secretary, any assistant treasurer, or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means (a) any Subsidiary which owns or is the
lessee of any Principal Manufacturing Property; provided, however, that the term
"Restricted Subsidiary" shall not include (A) any Subsidiary primarily engaged
in the business of purchasing, holding, collecting, servicing and otherwise
dealing in and with installment sales contracts, leases, trust receipts,
mortgages, commercial paper and other financing instruments, and any collateral
or agreements relating thereto, including, without limiting the generality of
the foregoing, financing (whether through long- or short-term borrowings,
pledges, discounts or otherwise) the sales, leasing or other operations of the
Issuer and its Subsidiaries or any of them, and not, except as incidental to
such financing business, engaged in owning, leasing or operating any property
which but for this proviso would qualify as a Principal Manufacturing Property
or (B) any Subsidiary acquired or organized for the purpose of acquiring the
stock or business or assets of any Person other than the Issuer or any
Restricted Subsidiary, whether by merger, consolidation,
7
acquisition of stock or assets or similar transaction, so long as such
Subsidiary does not acquire all or any substantial part of the business or
assets of the Issuer or any other Restricted Subsidiary; and (b) any other
Subsidiary which is hereafter designated by the Board of Directors as a
Restricted Subsidiary.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Senior Indebtedness" means the principal of, premium, if any, interest
on, and any other payment due pursuant to any of the following, whether
outstanding at the date hereof or hereafter incurred or created:
(a) all indebtedness of the Issuer for money borrowed (including any
indebtedness secured by a mortgage, conditional sales contract or other lien
which is (i) given to secure all or part of the purchase price of property
subject thereto, whether given to the vendor of such property or to another or
(ii) existing on property at the time of acquisition thereof);
(b) all indebtedness of the Issuer evidenced by notes, debentures,
bonds or other securities sold by the Issuer for money;
(c) all lease obligations of the Issuer which are capitalized on the
books of the Issuer in accordance with generally accepted accounting principles;
(d) all indebtedness of others of the kinds described in either of the
preceding clauses (a) or (b) and all lease obligations of others of the kind
described in the preceding clause (c) assumed by or guaranteed in any manner by
the Issuer or in effect guaranteed by the Issuer through an agreement to
purchase, contingent or otherwise; and
(e) all renewals, extensions or refundings of indebtedness of the
kinds described in any of the preceding clauses (a), (b) and (d) and all
renewals or extensions of lease obligations of the kinds described in either of
the preceding clauses (c) and (d);
unless, in the case of any particular indebtedness, lease, renewal, extension or
refunding, the instrument or lease creating or evidencing the same or the
assumption or guarantee of the same expressly provides that such indebtedness,
lease, renewal, extension or refunding is not superior in right of payment to
the Securities.
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"Subsidiary" means a corporation of which stock having a majority of
the voting power under ordinary circumstances is owned, directly or indirectly,
by the Issuer or by one or more subsidiaries of the Issuer, or by the Issuer and
one or more subsidiaries of the Issuer.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
8.01, 8.02 and 14.05) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article 6, shall also include
any successor trustee. "Trustee" shall also mean or include each Person who is
then a trustee hereunder and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.01(a).
"vice president", when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally. The Securities of each series and the
Coupons, if any, to be attached thereto shall be substantially in such form (not
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board Resolution, an
Officers' Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
9
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
___________________________________,
as Trustee
By__________________________________
Authorized Officer
SECTION 2.03. 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 one or more Board Resolutions of the Board of
Directors and set forth in a Board Resolution, or, to the extent established
pursuant to (rather than set forth in) a Board Resolution, in an Officers'
Certificate detailing such establishment and/or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series,
(a) the designation of the Securities of the series (which may be part
of a series of Securities previously issued);
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(b) the terms and conditions, if applicable, upon which conversion of
the Securities into Common Stock will be effected, including the initial
Conversion Price or rate, the conversion period and other provisions in addition
to or in lieu of those described herein;
(c) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 2.08, 2.09, 2.11, 8.05, or 13.04);
(d) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited to, any
Foreign Currency or euro);
(e) any date on which the principal of the Securities of the series is
payable;
(f) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered Securities)
on which a record shall be taken for the determination of Holders to whom
interest is payable and/or the method by which such rate or rates or date or
dates shall be determined;
(g) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in Section
3.02);
(h) the price or prices at which, the period or periods within 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, pursuant to any
sinking fund or otherwise;
(i) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which and the period or periods within which and any terms and
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(j) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in the case
of Unregistered Securities, the denominations in which Securities of the series
shall be issuable;
11
(k) 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;
(l) if other than the coin or currency in which the Securities of that
series are denominated, the coin or currency in which payment of the principal
of or interest on the Securities of such series shall be payable;
(m) if the principal of or interest on the Securities of the series is
to be payable, at the election of the Issuer or a Holder thereof, in a coin or
currency other than that in which the Securities are denominated, the period or
periods within which, and the terms and conditions upon which, such election may
be made;
(n) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based on a
coin or currency other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(o) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable as
Registered Global Securities) or Unregistered Securities (with or without
Coupons), or any combination of the foregoing, any restrictions applicable to
the offer, sale or delivery of Unregistered Securities or the payment of
interest thereon and, if other than as provided in Section 2.08, the terms upon
which Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(p) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a Person who is not a
U.S. Person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Issuer will have the option to redeem such
Securities rather than pay such additional amounts;
(q) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and terms of such certificates,
documents or conditions;
(r) any trustees, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Securities of such series;
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(s) any other events of default or covenants with respect to the
Securities of such series;
(t) if the Securities of the series may be issued in exchange for
surrendered Securities of another series, or for other securities of the Issuer,
pursuant to the terms of such Securities or securities or of any agreement
entered into by the Issuer, the ratio of the principal amount of the Securities
of the series to be issued to the principal amount of the Securities or
securities to be surrendered in exchange, and any other material terms of the
exchange; and
(u) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
SECTION 2.04. Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series having attached thereto appropriate Coupons, if
any, executed by the Issuer to the Trustee for authentication together with the
applicable documents referred to below in this Section, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee and to such recipients as
may be specified from time to time by an Issuer Order. The maturity date,
original issue date, interest rate and any other terms of the Securities of such
series and Coupons, if any, appertaining thereto shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such
procedures, such Issuer Order may authorize authentication and delivery pursuant
to oral instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon:
(a) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer;
(b) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.01 and 2.03 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(c) an Officers' Certificate setting forth the form or forms and terms
of the Securities and Coupons, if any, stating that the form or forms and terms
of the
13
Securities and Coupons, if any, have been established pursuant to Sections 2.01
and 2.03 and comply with this Indenture, and covering such other matters as the
Trustee may reasonably request; and
(d) an Opinion of Counsel to the effect that:
(i) the form or forms and terms of such Securities and Coupons, if
any, have been established pursuant to Sections 2.01 and 2.03 and
comply with this Indenture,
(ii) the authentication and delivery of such Securities and Coupons, if
any, by the Trustee are authorized under the provisions of this
Indenture,
(iii) such Securities and Coupons, if any, when authenticated and
delivered by the Trustee and issued by the Issuer in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Issuer, and
(iv) all laws and requirements in respect of the execution and delivery
by the Issuer of the Securities and Coupons, if any, have been complied
with,
and covering such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's own rights, duties or
immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.03 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series issued and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Registered
Global Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such
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Depositary or pursuant to such Depositary's instructions and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.03 must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
SECTION 2.05. Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by the chairman of its Board of Directors or any vice chairman of its
Board of Directors or its president or any vice president or its treasurer,
under its corporate seal (except in the case of Coupons) which may, but need
not, be attested. Such signatures may be the manual or facsimile signatures of
the present or any future such officers. The seal of the Issuer may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of this Indenture any
such person was not such an officer.
SECTION 2.06. Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be entitled to the
benefits of this Indenture or shall be valid and obligatory for any purpose
until the certificate of authentication
15
on the Security to which such Coupon appertains shall have been duly executed by
the Trustee. The execution of such certificate by the Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
SECTION 2.07. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series are
not so established, such Securities shall be issuable in denominations of $1,000
and $5,000. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof. Unless
otherwise indicated in a Board Resolution or supplemental indenture for a
particular series, interest will be calculated on the basis of a 360-day year of
twelve 30-day months.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section 2.03.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established as contemplated by
Section 2.03.
The Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer, exchange or conversion of such
Registered Security subsequent to the record date and prior to such interest
payment date (subject, in the case of conversion of such Security during such
period, to Section 14.02), except if and to the extent the Issuer shall default
in the payment of the interest due on such interest payment date for such
series, in which case such defaulted interest shall be paid to the Persons in
whose names Outstanding Registered Securities for such series are registered at
the close of business on a subsequent record date (which shall be not less than
five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Registered Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) for the Securities of any
series shall mean the date specified as such in the terms of the
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Registered Securities of such series established as contemplated by Section
2.03, or, if no such date is so established, if such interest payment date is
the first day of a calendar month, the 15th day of the next preceding calendar
month or, if such interest payment date is the 15th day of a calendar month, the
first day of such calendar month, whether or not such record date is a Business
Day.
SECTION 2.08. Registration, Transfer and Exchange. The Issuer will keep
at each office or agency to be maintained for the purpose as provided in Section
3.02 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Securities of such series and the registration of transfer of
Registered Securities of such series. Such register shall be in written form in
the English language or in any other form capable of being converted into such
form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.02, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same series, maturity
date, interest rate and original issue date in authorized denominations for a
like aggregate principal amount.
Unregistered Securities (except for any temporary Unregistered
Securities) and Coupons (except for Coupons attached to any temporary
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (except a Registered Global Security) may be exchanged for a Registered
Security or Registered Securities of such series having authorized denominations
and an equal aggregate principal amount, upon surrender of such Registered
Securities to be exchanged at the agency of the Issuer that shall be maintained
for such purpose in accordance with Section 3.02 and upon payment, if the Issuer
shall so require, of the charges hereinafter provided. If the Securities of any
series are issued in both registered and unregistered form, except as otherwise
specified pursuant to Section 2.03, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered Securities
of such series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.02, with, in the case of Unregistered Securities that have
Coupons attached, all unmatured Coupons and all matured Coupons in default
thereto appertaining, and
17
upon payment, if the Issuer shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of any
series, maturity date, interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise specified pursuant to
Section 2.03, such Unregistered Securities may be exchanged for Unregistered
Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to be exchanged
at the agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.02 or as specified pursuant to Section 2.03, with, in
the case of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter provided.
Unless otherwise specified pursuant to Section 2.03, Registered Securities of
any series may not be exchanged for Unregistered Securities of such series.
Whenever any Securities are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. All Securities and
Coupons surrendered upon any exchange or transfer provided for in this Indenture
shall be promptly cancelled and disposed of by the Trustee and the Trustee will
deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his or her attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any stamp
or other tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge shall
be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed or (b) any Securities selected, called or being called for redemption,
in whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.08, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series
18
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Registered Securities of a series
notifies the Issuer that it is unwilling or unable to continue as Depositary for
the Registered Securities of such series or if at any time the Depositary for
the Registered Securities of a series shall no longer be eligible under Section
2.04, the Issuer shall appoint a successor Depositary with respect to the
Registered Securities of such series. If a successor Depositary for the
Registered Securities of such series is not appointed by the Issuer within 90
days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.03 that the
Registered Securities of such series be represented by a Registered Global
Security shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without Coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
the Registered Securities of such series, in exchange for such Registered Global
Security or Securities.
The Issuer may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without Coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such series, in exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.03 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
19
(a) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Registered Global
Security; and
(b) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Global Security and the aggregate principal amount of
Registered Securities authenticated and delivered pursuant to clause (a) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without Coupons, in authorized denominations, such
Registered Global Security shall be cancelled by the Trustee. Securities in
definitive registered form without Coupons issued in exchange for a Registered
Global Security pursuant to this Section 2.08 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, neither the Issuer nor the Trustee (which shall rely
on an Officers' Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Issuer (such as,
for example, the inability of the Issuer to deduct from its income, as computed
for Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, the Trustee shall authenticate and deliver
a new Security of the same series, maturity date, interest rate and original
issue date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen with Coupons corresponding to the
20
Coupons appertaining to the Securities so mutilated, defaced, destroyed, lost or
stolen, or in exchange or substitution for the Security to which such mutilated,
defaced, destroyed, lost or stolen Coupon appertained, with Coupons appertaining
thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or
stolen. In every case the applicant for a substitute Security or Coupon shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof and in the case of
mutilation or defacement shall surrender the Security and related Coupons to the
Trustee.
Upon the issuance of any substitute Security or Coupon, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith. In case any Security
or Coupon which has matured or is about to mature or has been called for
redemption in full, or is being surrendered for conversion in full, shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may, instead of
issuing a substitute Security (with the Holder's consent, in the case of
convertible Securities), pay or authorize the payment of the same or the
relevant Coupon or convert, or authorize conversion of the same (without
surrender thereof except in the case of a mutilated or defaced Security or
Coupon), if the applicant for such payment shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security or
Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and delivered hereunder.
All Securities and Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment or conversion of mutilated, defaced
or destroyed, lost or stolen Securities and Coupons and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the
21
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10. Cancellation of Securities; Destruction Thereof. All
Securities and Coupons surrendered for exchange for Securities of the same
series or for payment, redemption, registration of transfer, conversion or for
credit against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be
delivered to the Trustee for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Securities or Coupons shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of cancelled Securities and Coupons held by
it and deliver a certificate of disposition to the Issuer. If the Issuer shall
acquire any of the Securities or Coupons, such acquisition shall not operate as
a redemption or satisfaction of the Debt represented by such Securities or
Coupons unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.11. Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered Securities
with or without Coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Registered Securities, all as may be determined by the Issuer with the
concurrence of the Trustee as evidenced by the execution and authentication
thereof. Temporary Securities may contain such reference to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Registered
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.02 and, in the case of Unregistered Securities, at any
agency maintained by the Issuer for such purpose as specified pursuant to
Section 2.03, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations and, in
the case of Unregistered Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this
22
Indenture as definitive Securities of such series, unless the benefits of the
temporary Securities are limited pursuant to Section 2.03. The provisions of
this Section are subject to any restrictions or limitations on the issue and
delivery of temporary Unregistered Securities of any series that may be
established pursuant to Section 2.03 (including any provision that Unregistered
Securities of such series initially be issued in the form of a single global
Unregistered Security to be delivered to a depositary or agency located outside
the United States and the procedures pursuant to which definitive or global
Unregistered Securities of such series would be issued in exchange for such
temporary global Unregistered Security).
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. If any temporary Unregistered
Security provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and, as
to the other installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest, in each case
subject to any restrictions that may be established pursuant to Section 2.03.
The interest on Registered Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to or
upon the written order of the Holders thereof and at the option of the Issuer
may be paid by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the registry
books of the Issuer.
SECTION 3.02. Offices for Payments, Etc. The Issuer will maintain (a)
in the Borough of Manhattan, The City of New York, an agency where the
23
Registered Securities of each series may be presented for payment, an agency
where the Securities of each series may be presented for exchange and
conversion, if applicable, as is provided in this Indenture and, if applicable,
pursuant to Section 2.03 and an agency where the Registered Securities of each
series may be presented for registration of transfer as in this Indenture
provided and (b) such further agencies in such places as may be determined for
the Securities of such series pursuant to Section 2.03.
The Issuer will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of such series are listed) where the Unregistered Securities, if any,
of each series and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the Issuer
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in the Borough of Manhattan, The City of New York, if such
payment in Dollars at each agency maintained by the Issuer outside the United
States for payment on such Unregistered Securities is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an agency where notices and demands to or upon the Issuer in respect of
the Securities of any series, the Coupons appertaining thereto or this Indenture
may be served.
The Issuer will give to the Trustee written notice of the location of
each such agency and of any change of location thereof. In case the Issuer shall
fail to maintain any agency required by this Section to be located in the
Borough of Manhattan, The City of New York, or shall fail to give such notice of
the location or of any change in the location of any of the above agencies,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
agencies where the Securities of a series and any Coupons appertaining thereto
may be presented for payment, where the Securities of that series may be
presented for exchange or conversion, if applicable, as provided in this
Indenture
24
and pursuant to Section 2.03 and where the Registered Securities of that series
may be presented for registration of transfer as in this Indenture provided, and
the Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.04. Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on
the Securities of such series) in trust for the benefit of the Holders of the
Securities of such series, or Coupons appertaining thereto, if any, or of the
Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any payment
of the principal of or interest on the Securities of such series when the same
shall be due and payable, and
(c) that at any time during the continuance of any such failure, upon
the written request of the Trustee, it will forthwith pay to the Trustee all
sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit
25
of the Holders of the Securities of such series or the Coupons appertaining
thereto a sum sufficient to pay such principal or interest so becoming due. The
Issuer will promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject
to Section 10.01, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Sections 10.03 and 10.04.
SECTION 3.05. Written Statement to Trustee. So long as any Securities
are Outstanding, the Issuer will deliver to the Trustee on or before July 15 in
each year (beginning in 1999) a written statement covering the previous calendar
year, signed by two of its officers (which need not comply with Section 11.05),
stating that in the course of the performance of their duties as officers of the
Issuer they would normally have knowledge of any default by the Issuer in the
performance or fulfillment of any covenant, agreement or condition contained in
this Indenture, stating whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers have knowledge and
the nature thereof.
SECTION 3.06. Limitation on Liens. The following provisions shall apply
to the Securities of each series unless specifically otherwise provided in a
Board Resolution, Officers' Certificate or indenture supplemental hereto as
provided pursuant to Section 2.03.
(a) The Issuer will not issue or assume, and will not permit any
Restricted Subsidiary to issue or assume, any Debt secured by any mortgage,
pledge, lien or other encumbrance (mortgages, pledges, liens and other
encumbrances being hereinafter called "Mortgage" or "Mortgages") upon any
Principal Manufacturing Property, or shares of capital stock or Debt of any
Restricted Subsidiary (whether such Principal Manufacturing Property, shares of
stock or Debt is now owned or hereafter acquired) without in any such case
effectively providing, concurrently with the issuance or assumption of such
Debt, that the Securities (together with, if the Issuer shall so determine, any
other Debt of the Issuer or such Restricted Subsidiary ranking equally with the
Securities and
26
then existing or thereafter created) shall be secured equally and ratably with
such Debt; provided, that the foregoing restrictions shall not apply to:
(i) Mortgages on any Principal Manufacturing Property hereafter
acquired by the Issuer or a Restricted Subsidiary prior to, at the
time of, or within 120 days after the latest of the acquisition,
completion of construction (including any improvements on an existing
property) or commencement of commercial operation of such property, to
secure or provide for the payment or financing of all or any part of
the purchase price thereof or construction of fixed improvements
thereon, or, in addition to assumptions in transactions contemplated
by subparagraph (ii) below, the assumption of any Mortgage upon any
such property hereafter acquired existing at the time of such
acquisition, or the acquisition of any such property subject to any
Mortgage without the assumption thereof; provided, that the aggregate
principal amount of Debt secured by any such Mortgage so issued,
assumed or existing shall not exceed 100% of the cost of such
Principal Manufacturing Property to the corporation acquiring the same
or of the fair value thereof (as determined by resolution adopted by
the Board of Directors) at the time of such acquisition, whichever is
less, and provided, further, that in the case of any such acquisition,
construction or improvement the Mortgage shall not apply to any
property theretofore owned by the Issuer or a Restricted Subsidiary,
other than, in the case of any such construction or improvement, any
theretofore unimproved real property on which the property so
constructed, or the improvement, is located;
(ii) the assumption of any Mortgage on any Principal
Manufacturing Property of a corporation which is merged into or
consolidated with the Issuer or a Restricted Subsidiary or
substantially all the assets of which are acquired by the Issuer or a
Restricted Subsidiary;
(iii) Mortgages on any Principal Manufacturing Property of the
Issuer or a Restricted Subsidiary in favor of the United States of
America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or
other payments pursuant to any contract or statute or to secure any
Debt incurred or guaranteed for the purpose of financing all or any
part of the cost of acquiring, constructing or improving the property
subject to such Mortgages (including Mortgages incurred in connection
with pollution control, industrial revenue, Title XI maritime
financings or similar financings);
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(iv) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part, of any
Mortgage referred to in the foregoing clauses (i) through (iii);
provided, however, that the principal amount of Debt so secured
thereby shall not exceed the principal amount of Debt so secured at
the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a part of
the property which secured the Mortgage so extended, renewed or
replaced (plus improvements and construction on such property); and
(v) Mortgages securing Debt of a Restricted Subsidiary owing to
the Issuer or another Restricted Subsidiary.
(b) Notwithstanding the provisions of subsection (a) of this Section
3.06, the Issuer or any one or more Subsidiaries may issue or assume Debt
secured by a Mortgage in addition to those permitted by subsection (a) of this
Section 3.06 and renew, extend or replace such Mortgages; provided, that at the
time of such creation, assumption, renewal, extension or replacement, and after
giving effect thereto, Exempted Debt does not exceed 5% of Consolidated Net
Tangible Assets.
SECTION 3.07. Limitation on Sale and Leaseback. The following
provisions shall apply to the Securities of each series unless specifically
otherwise provided in a Board Resolution, Officers' Certificate or indenture
supplemental hereto provided pursuant to Section 2.03.
(a) The Issuer will not, nor will it permit any Restricted Subsidiary
to, enter into any arrangement with any Person providing for the leasing by the
Issuer or any Restricted Subsidiary of any Principal Manufacturing Property,
whether such Principal Manufacturing Property is now owned or hereafter
acquired, except for temporary leases for a term, including renewals at the
option of the lessee, of not more than three years and except for leases between
the Issuer and a Restricted Subsidiary or between Restricted Subsidiaries, which
property has been or is to be sold or transferred by the Issuer or such
Restricted Subsidiary to such Person with the intention of taking back a lease
of such property (a "sale and leaseback transaction") unless the proceeds of
such sale or transfer shall be at least equal to the fair value of such property
as determined by resolution adopted by the Board of Directors and either:
(i) the Issuer or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 3.06, to issue or assume Debt
secured by a Mortgage on such property at least equal in amount to the
Attributable Debt in respect of such sale and leaseback transaction
without equally and ratably securing the Securities; provided, however,
that from
28
and after the date on which such sale and leaseback transaction becomes
effective the Attributable Debt in respect of such arrangement shall be
deemed for all purposes under Section 3.06 and this Section 3.07 to be
Debt subject to the provisions of Section 3.06; or
(ii) within a period commencing 12 months prior to the
consummation of such sale and leaseback transaction and ending 12
months after the consummation of such sale and leaseback transaction,
the Issuer or Restricted Subsidiary, as the case may be, has expended,
or will expend, for Principal Manufacturing Property an amount equal
to (A) the proceeds of such sale and leaseback transaction and the
Issuer elects to designate such amount as a credit against such sale
and leaseback transaction or (B) a part of the proceeds of such sale
and leaseback transaction and the Issuer elects to designate such
amount as a credit against such sale and leaseback transaction and
treats an amount equal to the remainder of the proceeds as provided in
clause (iii) hereof; or
(iii) such sale or transfer does not come within the exceptions
provided by clause (i) hereof and the Issuer does not make the
election permitted by clause (ii) hereof or makes such election only
as to part of such proceeds, in either of which events the Issuer will
(A) within 120 days after such sale and leaseback transaction, apply
an amount equal to the Attributable Debt in respect of such sale and
leaseback transaction (less an amount equal to the amount, if any,
elected under clause (ii) hereof) to the retirement (other than any
mandatory retirement or by way of payment at maturity) of Funded Debt
of the Issuer or any Restricted Subsidiary, or (B) consider an amount
equal to the Attributable Debt in respect of such sale and leaseback
transaction (less an amount equal to the amount, if any, elected under
clause (ii) hereof) to be Attributable Debt for purposes of the
calculation of Exempted Debt; provided, that, after giving effect
thereto, Exempted Debt does not exceed 5% of Consolidated Net Tangible
Assets.
For the purpose of this Section 3.07 the term "Attributable Debt" shall
mean, at the time of determination, the present value (discounted at the
interest rate implicit in the lease or, if it is not practicable to determine
such rate, then at the Issuer's incremental borrowing rate determined in
accordance with generally accepted accounting principles) of the obligation of
the lessee for net rental payments during the remaining term of any lease
included in the sale and leaseback transaction (including any period for which
such lease has been extended or may, at the option of the lessor, be extended).
The term "net rental payments" under any lease for any period shall mean the sum
of the rental and other payments required to be paid by such lessee thereunder,
not including,
29
however, amounts payable by the lessee for maintenance and repairs, insurance,
taxes, assessments and similar charges and for contingent rents (such as those
based on sales).
(b) Notwithstanding the provisions of paragraph (a) of this Section
3.07, the Issuer and any Restricted Subsidiary may enter into sale and leaseback
transactions in addition to those permitted by paragraph (a) of this Section
3.07 and without any obligation to make expenditures for Principal Manufacturing
Property or to retire any Debt; provided, that at the time of entering into such
sale and leaseback transactions and after giving effect thereto, Exempted Debt
does not exceed 5% of Consolidated Net Tangible Assets.
SECTION 3.08. Luxembourg Publications. In the event of the publication
of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.02, 10.04, 13.02 or
13.06, the party making such publication in the Borough of Manhattan, The City
of New York, and London shall also, to the extent that notice is required to be
given to Holders of Securities of any series by applicable Luxembourg law or
stock exchange regulation, as evidenced by an Officers' Certificate delivered to
such party, make a similar publication in Luxembourg.
ARTICLE 4
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.01. Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Securities of each series pursuant to Section 312 of the Trust Indenture Act of
1939:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Registered Securities, as hereinabove specified,
as of such record date and on dates to be determined pursuant to Section 2.03
for non-interest bearing Registered Securities in each year, and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request as of a date not more
than 15 days prior to the time such information is furnished, provided, that, if
and so long as the Trustee shall be the Security registrar for such series and
all of the Securities of any series are Registered Securities, such list shall
not be required to be furnished.
30
SECTION 4.02. Reports by the Issuer. The Issuer covenants to file with
the Trustee, within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the information, documents,
and other reports which the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934.
SECTION 4.03. Reports by the Trustee. Any Trustee's report required
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before July 15 in each year following the date hereof, so long as any
Securities are Outstanding hereunder, and shall be dated as of a date convenient
to the Trustee but no more than 60 nor less than 45 days prior thereto.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default", with respect to Securities of any series
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise; or
(c) default in the performance, or breach, of any covenant or warranty
of the Issuer in respect of the Securities of such series (other than a covenant
or warranty in respect of the Securities of such series a default in the
performance or breach of which is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Issuer by the
Trustee or to the Issuer and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of all series affected thereby, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
31
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial part of
its property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar official)
of the Issuer or for any substantial part of its property, or make any general
assignment for the benefit of creditors; or
(f) default by the Issuer in the conversion of any Security in
accordance herewith and continuance of such default for a period of 45 days; or
(g) any other Event of Default provided in the supplemental indenture
or resolution of the Board of Directors under which such series of Securities is
issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c), (f) or (g)
(if the Event of Default under clause (c) or (g) is with respect to less than
all series of Securities then Outstanding) occurs and is continuing, then, and
in each and every such case, unless the principal of all of the Securities of
such series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (c) or
(g) (if the Event of Default under clause (c) or (g) is with respect to all
series of Securities then Outstanding), (d) or (e) occurs and is continuing,
then and in each and every such case, unless the principal of all the Securities
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in writing to the Issuer
(and to the
32
Trustee if given by Securityholders), may declare the entire principal (or, if
any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
Outstanding and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series, (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein--then and in every such case the Holders of a majority in aggregate
principal amount of all the Securities of such series, each series voting as a
separate class, (or of all the Securities, as the case may be, voting as a
single class) then Outstanding, by written notice to the Issuer and to the
Trustee, may waive all defaults with respect to such series (or with respect to
all the Securities, as the case may be) and rescind and annul such declaration
and its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and
33
payable as a result of such acceleration, and payment of such portion of the
principal thereof as shall be due and payable as a result of such acceleration,
together with interest, if any, thereon and all other amounts owing thereunder,
shall constitute payment in full of such Original Issue Discount Securities.
SECTION 5.02. Collection of Debt by Trustee; Trustee May Prove Debt.
The Issuer covenants that (a) in case default shall be made in the payment of
any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise--then, upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series,
and such Coupons, for principal or interest, as the case may be (with interest
to the date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series); and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor trustee
except as a result of its negligence or bad faith.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or its
property, or in case of any
34
other comparable judicial proceedings relative to the Issuer or other obligor
upon the Securities of any series, or to the creditors or property of the Issuer
or such other obligor, the Trustee, irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the
Issuer or such other obligor,
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(iii) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of
the Securityholders to make payments to the Trustee, and, in the event
that the Trustee shall consent to the making of payments directly to
the Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor trustee except as a
result of its negligence or bad faith and all other amounts due to the
Trustee or any predecessor trustee pursuant to Section 6.06.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such Securities or the
production thereof on any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or Coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities parties to any such
proceedings.
SECTION 5.03. Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee or any
predecessor trustee pursuant to Section 6.06;
36
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and
be then due and payable, to the payment of interest on the Securities
of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and interest, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment
of such principal and interest or Yield to Maturity, without
preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of
any installment of interest over any other installment of interest, or
of any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid
interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other Person lawfully entitled thereto.
SECTION 5.04. Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.05. Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
37
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 5.06. Limitations on Suits by Securityholders. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action or proceedings in
its own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 5.09;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security or Coupon with every other taker and Holder and the
Trustee, that no one or more Holders of Securities of any series or Coupons
appertaining to such Securities shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities or Coupons
appertaining to such Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series and Coupons
appertaining to such Securities. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 5.07. Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security or Coupon to
receive payment of the principal of and interest on such Security or Coupon on
or after the respective due dates expressed in such Security or Coupon, or to
convert such Security in accordance with Article 14, or to institute suit for
the enforcement of
38
any such payment on or after such respective dates, or for the enforcement of
such conversion right, shall not be impaired or affected without the consent of
such Holder.
SECTION 5.08. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 5.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
Coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.06, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.09. Control by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of each series affected
(with each series voting as a separate class) at the time Outstanding shall have
the right to direct the time, method, and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee with respect to the Securities of such series by this Indenture;
provided, that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided, further, that (subject to the
provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors, the executive committee,
or a trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.01) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
39
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10. Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 5.01, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding may on behalf of the Holders
of all the Securities of such series waive any past default or Event of Default
described in clause (c) or (g) of Section 5.01 (or, in the case of an event
specified in clause (c) or (g) of Section 5.01 which relates to less than all
series of Securities then Outstanding, the Holders of a majority in aggregate
principal amount of the Securities then Outstanding affected thereby (each
series voting as a separate class) may waive any such default or Event of
Default, or, in the case of an event specified in clause (c) or (g) (if the
Event of Default under clause (c) or (g) relates to all series of Securities
then Outstanding), (d) or (e) of Section 5.01 the Holders of Securities of a
majority in principal amount of all the Securities then Outstanding (voting as
one class) may waive any such default or Event of Default), and its consequences
except a default in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each Security affected.
In the case of any such waiver, the Issuer, the Trustee and the Holders of the
Securities of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.11. Trustee to Give Notice of Default, but May Withhold in
Certain Circumstances. The Trustee shall, within 90 days after the occurrence of
a default with respect to the Securities of any series, give notice of all
defaults with respect to that series known to the Trustee (a) if any
Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York, and at least once in an Authorized Newspaper
in London (and, if required by Section 3.08, at least once in an Authorized
Newspaper in Luxembourg) and (b) to all Holders of Securities of such series in
the manner and to the extent provided in Section 4.03, unless in each case such
defaults shall have been cured before the mailing or publication of such notice
(the term "defaults" for the purpose of this Section being hereby defined to
mean any event or condition
40
which is, or with notice or lapse of time or both would become, an Event of
Default); provided, that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the
payment of any sinking fund installment on such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.
SECTION 5.12. Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security or
Coupon by his or her acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (c) or (g) of Section 5.01 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (c) or (g) (if
the suit under clause (c) or (g) relates to all the Securities then
Outstanding), (d) or (e) of Section 5.01, 10% in aggregate principal amount of
all Securities then Outstanding, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of or interest on any
Security on or after the due date expressed in such Security or any date fixed
for redemption or for the enforcement of a right to convert any Security in
accordance with Article 14.
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of a particular series and after the
curing or waiving of all
41
Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders pursuant to Section 5.09 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
42
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.01 are in furtherance of and subject
to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 6.02. Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939 and subject to Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
43
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided, that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer
upon demand; and
(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 not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
SECTION 6.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or Coupons. The
Trustee shall not be accountable for the use or application by the Issuer of any
of the Securities or of the proceeds thereof.
SECTION 6.04. Trustee and Agents May Hold Securities or Coupons;
Collections, Etc. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
or Coupons with the same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would have if it were
not the Trustee or such agent.
SECTION 6.05. Moneys Held by Trustee. Subject to the provisions of
Section 10.04 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
44
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.06. Compensation and Indemnification of Trustee and its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and
each predecessor trustee and to pay or reimburse the Trustee and each
predecessor trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities or Coupons, and the Securities are hereby subordinated
to such senior claim.
SECTION 6.07. Right of Trustee to Rely on Officers' Certificate, Etc.
Subject to Sections 6.01 and 6.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
45
SECTION 6.08. Indentures Creating Potential Conflicting Interests for
the Trustee. No indentures are hereby specifically described for the purposes of
Section 310(b)(1) of the Trust Indenture Act of 1939.
SECTION 6.09. Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation
having a combined capital and surplus of at least $50,000,000 and shall be
eligible in accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of a Federal, State or
District of Columbia supervising or examining authority, then, for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.
SECTION 6.10. Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and at
least once in an Authorized Newspaper in London (and, if required by Section
3.08, at least once in an Authorized Newspaper in Luxembourg), (ii) if any
Unregistered Securities of a series affected are then Outstanding, by mailing
notice of such resignation to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 4.01 at such addresses as were so
furnished to the Trustee and (iii) by mailing notice of such resignation to the
Holders of then Outstanding Registered Securities of each series affected at
their addresses as they shall appear on the registry books. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself or herself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
46
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939
and shall fail to resign after written request therefor by the Issuer
or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself or herself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.01 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to
47
any of the provisions of this Section 6.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.04,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor trustee with respect to the
Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 310(a) of the Trust Indenture Act of 1939.
48
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall mail notice thereof (a) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof, by
publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York, and at least once in an Authorized
Newspaper in London (and, if required by Section 3.08, at least once in an
Authorized Newspaper in Luxembourg), (b) if any Unregistered Securities of a
series affected are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 4.01, by mailing
such notice to such Holders at such addresses as were so furnished to the
Trustee (and the Trustee shall make such information available to the Issuer for
such purpose) and (c) to the Holders of Registered Securities of each series
affected, by mailing such notice to such Holders at their addresses as they
shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to mail such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.12. Merger, Conversion, Consolidation, or Succession to
Business of Trustee. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; provided, that such
corporation shall be qualified under the provisions of Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 310(a)
of the Trust Indenture Act of 1939, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
In case, at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor trustee or to authenticate Securities
49
of any series in the name of any predecessor trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.01 and 6.02) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.02. Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.01 and 6.02, the execution of any instrument
by a Securityholder or his or her agent or proxy may be proved in the following
manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the person executing such instruments acknowledged to him or her the
execution thereof, or by an affidavit of a witness to such execution sworn to
before any such notary or other such officer. Where such execution is by or on
behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of the person
executing the same. The fact of the holding by any Holder of an Unregistered
Security of any series, and the identifying number of such Security and the date
of his or her holding the same, may be proved by the production of such Security
or by a certificate executed by any trust company, bank, banker or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer by
the Person named in such certificate. Any such certificate
50
may be issued in respect of one or more Unregistered Securities of one or more
series specified therein. The holding by the Person named in any such
certificate of any Unregistered Securities of any series specified therein shall
be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (i) another
certificate bearing a later date issued in respect of the same Securities shall
be produced, or (ii) the Security of such series specified in such certificate
shall be produced by some other Person, or (iii) the Security of such series
specified in such certificate shall have ceased to be Outstanding. Subject to
Sections 6.01 and 6.02, the fact and date of the execution of any such
instrument and the amount and numbers of Securities of any series held by the
Person so executing such instrument and the amount and numbers of any Security
or Securities for such series may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee for such
series or in any other manner which the Trustee for such series may deem
sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of the
Security registrar.
(c) If the Issuer shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other action, the Issuer may, at its option, by Board Resolution, fix
in advance a record date for the determination of Holders of Registered
Securities entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Issuer shall have no obligation
to do so. Notice of such record date shall be given to the Trustee as soon as
practicable after the time that the record date has been fixed. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after such record date, but only
the Holders of Registered Securities of record at the close of business on such
record date shall be deemed to be Holders of Registered Securities for the
purposes of determining whether Holders of Registered Securities of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided, that no such authorization, agreement
or consent by the Holders of Registered Securities on such record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 7.03. Holders to Be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be
51
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of, and,
subject to the provisions of this Indenture, interest on, such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. The
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the Issuer,
the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such Person, or upon
his or her order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Unregistered Security or Coupon.
SECTION 7.04. Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that, for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.01 and 6.02, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence of
the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
52
SECTION 7.05. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid, any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by such
action.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto in form satisfactory to the Trustee
for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Issuer pursuant to Article 9;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as its Board of Directors and the Trustee
shall consider to be for the protection of the Holders of Securities or Coupons,
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several remedies
provided
53
in this Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of
the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Board of Directors may deem
necessary or desirable; provided, that no such action shall adversely affect the
interests of the Holders of the Securities or Coupons;
(e) to establish the form or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.01 and
2.03 and to provide for adjustment of conversion rights pursuant to Section
14.05; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of Section 8.02.
SECTION 8.02. Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article 7) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors,
and
54
the Trustee may, from time to time and at any time, 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 any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series or of the Coupons appertaining to
such Securities; provided, that no such supplemental indenture shall (a) extend
the final maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof, or make the principal thereof (including
any amount in respect of original issue discount) or interest thereon payable in
any coin or currency other than that provided in the Securities and Coupons or
in accordance with the terms thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.01 or the amount
thereof provable in bankruptcy pursuant to Section 5.02, or alter the provisions
of Section 11.11 or 11.12, or impair or affect the right of any Securityholder
to institute suit for the payment or conversion thereof, or materially and
adversely affect the right to convert the Securities in accordance with Article
14 or, if the Securities provide therefor, any right of repayment at the option
of the Securityholder, in each case without the consent of the Holder of each
Security so affected; provided, that no consent of any Holder of any Security
shall be necessary under this Section 8.02 to permit the Trustee and the Issuer
to execute supplemental indentures pursuant to Section 8.01(e) and Section 14.05
of this Indenture, or (b) reduce the aforesaid percentage of Securities of any
series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Issuer authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 7.01, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities
55
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give a notice thereof (a) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, (b) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 4.01, by mailing a notice
thereof by first-class mail to such Holders at such addresses as were so
furnished to the Trustee and (c) if any Unregistered Securities of a series
affected thereby are then Outstanding, to all Holders thereof, by publication of
a notice thereof at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.08, at least once in an Authorized
Newspaper in Luxembourg), and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any failure of the
Trustee to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 8.03. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.04. Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.11 and 6.02, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 8 complies with the applicable provisions of
this Indenture.
56
SECTION 8.05. Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Issuer May Consolidate, Etc., on Certain Terms. The
Issuer covenants that it will not merge or consolidate with any other
corporation or sell or convey (including by way of lease) all or substantially
all of its assets to any Person, unless (a) either the Issuer shall be the
continuing corporation, or the successor corporation or the Person which
acquires by sale or conveyance substantially all the assets of the Issuer (if
other than the Issuer) shall expressly assume the due and punctual payment of
the principal of and interest on all the Securities and Coupons, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Issuer, including, without limitation, the conversion rights, if any, provided
for in accordance with Article 14, by supplemental indenture satisfactory to the
Trustee, executed and delivered to the Trustee by such corporation or entity,
and shall be a corporation or entity organized under the laws of the United
States of America or any State thereof or a corporation or entity not organized
under such laws which shall agree, in form satisfactory to the Trustee, (i) to
subject itself to the jurisdiction of the United States district court for the
Southern District of New York, and (ii) to indemnify and hold harmless the
holders of all Securities or Coupons against (A) any tax, assessment or
governmental charge imposed on such holders by a jurisdiction other than the
United States or any political subdivision or taxing authority thereof or
therein with respect to, and withheld on the making of, any payment of principal
of or interest on such Securities or Coupons and which would not have been so
imposed and withheld had such consolidation, merger, sale or conveyance not been
made and (B) any tax, assessment or governmental charge imposed on or relating
to, and any costs or expenses involved in, such consolidation, merger, sale or
conveyance, and (b) the Issuer or such successor corporation or entity, as
57
the case may be, shall not, immediately after such merger or consolidation, or
such sale or conveyance, be in default in the performance of any such covenant
or condition.
SECTION 9.02. Successor Issuer Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation or entity, such successor corporation or entity shall
succeed to and be substituted for the Issuer with the same effect as if it had
been named herein. Such successor corporation or entity may cause to be signed,
and may issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder, together with any
Coupons appertaining thereto, which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation or entity instead of the Issuer and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities, together with any Coupons
appertaining thereto, which previously shall have been signed and delivered by
the officers of the Issuer to the Trustee for authentication, and any
Securities, together with any Coupons appertaining thereto, which such successor
corporation or entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued, together with any
Coupons appertaining thereto, shall in all respects have the same legal rank and
benefit under this Indenture as the Securities and Coupons theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities and Coupons had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease), the Issuer or any successor corporation or entity which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 9.03. Opinion of Counsel and Officers' Certificate to Trustee.
The Trustee, subject to the provisions of Sections 6.11 and 6.02, may receive an
Opinion of Counsel and an Officers' Certificate, prepared in accordance with
Section 11.05, as conclusive evidence that any such consolidation, merger, sale,
lease or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture.
58
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.01. Satisfaction and Discharge of Indenture. (a) If at any
time (i) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all
unmatured Coupons appertaining thereto (other than Securities of such series and
Coupons appertaining thereto which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.09) as and when the same
shall have become due and payable, or (ii) the Issuer shall have delivered to
the Trustee for cancellation all Securities of any series theretofore
authenticated and all unmatured Coupons appertaining thereto (other than any
Securities of such series and Coupons appertaining thereto which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.09) or (iii) in the case of any series of Securities the exact
amount (including the currency of payment) of principal of and interest due on
which on the dates referred to in clause (B) below can be determined at the time
of making the deposit referred to in such clause, (A) all the Securities of such
series and all unmatured Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (B) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any paying agent to
the Issuer in accordance with Section 10.04) or, in the case of any series of
Securities the payments on which may only be made in Dollars, direct obligations
of the United States of America, backed by its full faith and credit ("U.S.
Government Obligations"), maturing as to principal and interest in such amounts
and at such times as will insure the availability of cash sufficient to pay on
any subsequent interest payment date all interest due on such interest payment
date on the Securities of such series and all Coupons appertaining thereto and
to pay at maturity or upon redemption all Securities of such series and all
unmatured Coupons appertaining thereto (in each case other than any Securities
of such series and Coupons appertaining thereto which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section
2.09) not theretofore delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of maturity, as the
case may be, and if, in any such case, the Issuer shall also pay or cause to be
paid all other sums payable hereunder by the Issuer, including amounts due the
Trustee pursuant to Section 6.06, with respect to Securities of such series,
then this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (1) rights of registration of transfer,
conversion and exchange of Securities of such series, and of Coupons
appertaining thereto, and the Issuer's
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right of optional redemption, (2) substitution of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons, (3) rights of Holders of Securities and
Coupons appertaining thereto to receive payments of principal thereof and
interest thereon upon the original stated due dates therefor (but not upon
acceleration) and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (4) the rights (including the Trustee's rights under
Section 10.05) and immunities of the Trustee hereunder and the Trustee's
obligations under Sections 10.02 and 10.04, (5) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them and (6) the obligations of the Issuer under Section 3.02), and
the Trustee, on demand of the Issuer accompanied by an Officers' Certificate and
an Opinion of Counsel which complies with Section 11.05 and at the cost and
expense of the Issuer, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture with respect to such series;
provided, that the rights of Holders of the Securities and Coupons to receive
amounts in respect of principal of and interest on the Securities and Coupons
held by them shall not be delayed longer than required by then-applicable
mandatory rules or policies of any securities exchange upon which the Securities
are listed. The Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities of such series.
(b) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.03.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact amounts (including
the currency of payment) of principal of and interest subsequently due on which
can be determined at the time of making the deposit referred to in clause (A)
below, the Issuer shall be deemed to have paid and discharged the entire Debt on
all the Securities of such a series and the Coupons appertaining thereto on the
121st day after the date of the deposit referred to in subparagraph (A) below,
and the provisions of this Indenture with respect to the Securities of such
series and Coupons appertaining thereto shall no longer be in effect (except as
to (i) rights of registration of transfer, conversion and exchange of Securities
of such series, and of Coupons appertaining thereto, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen Securities or Coupons,
(iii) rights of Holders of Securities and Coupons appertaining thereto to
receive payments of principal thereof and interest thereon, upon the original
stated due dates therefor (but not upon acceleration) and remaining rights of
the Holders to receive sinking fund payments, if any, (iv) the rights (including
the Trustee's rights under Section 10.05) and immunities of
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the Trustee hereunder and the Trustee's obligations with respect to the
Securities of such series under Sections 10.02 and 10.04, (v) the rights of the
Holders of Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them and (vi) the obligations of the Issuer under
Section 3.02) and the Trustee, at the expense of the Issuer, shall at the
Issuer's request, execute proper instruments acknowledging the same, if
(A) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series and Coupons
appertaining thereto (1) cash in an amount, or (2) in the case
of any series of Securities the payments on which may only be
made in Dollars, U.S. Government Obligations, maturing as to
principal and interest at such times and in such amounts as
will insure the availability of cash or (3) a combination
thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (i) the
principal and interest on all Securities of such series and
Coupons appertaining thereto on the date that such principal
or interest is due and payable and (ii) any mandatory sinking
fund payments on the day on which such payments are due and
payable in accordance with the terms of the Indenture and the
Securities of such series;
(B) such deposit will not result in a breach or violation
of, or constitute a default under, any agreement or instrument
to which the Issuer is a party or by which it is bound;
(C) the Issuer has delivered to the Trustee an Officers'
Certificate and an opinion of independent legal counsel
satisfactory to the Trustee to the effect that the Issuer has
received from, or there has been published by, the Internal
Revenue Service a ruling to the effect that Holders of the
Securities of such series and Coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge
and will be subject to Federal income tax on the same amount
and in the same manner and at the same times, as would have
been the case if such deposit, defeasance and discharge had
not occurred; and
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(D) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with, and
the Opinion of Counsel shall also state that such deposit does
not violate applicable law.
SECTION 10.02. Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.04, all moneys deposited with the Trustee (or
other trustee) pursuant to Section 10.01 shall be held in trust and applied by
it to the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 10.03. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.04. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest on any Security of
any series or Coupons appertaining thereto and not applied but remaining
unclaimed for two years after the date upon which such principal or interest
shall have become due and payable, shall, upon the written request of the Issuer
and unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for
such series or such paying agent, and the Holder of the Securities of such
series and of any Coupons appertaining thereto shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment (a) in respect of
Registered Securities of any series, shall at the expense of the Issuer, mail by
first-class mail to Holders of such Securities at their addresses as they shall
appear on the
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Security register, and (b) in respect of Unregistered Securities of any series,
shall at the expense of the Issuer cause to be published once, in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, and once in an
Authorized Newspaper in London (and if required by Section 3.08, once in an
Authorized Newspaper in Luxembourg), notice, that such moneys remain and that,
after a date specified therein, which shall not be less than 30 days from the
date of such mailing or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 10.05. Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.01 or the principal or interest received in respect of such
obligations.
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue of
the Securities and the Coupons appertaining thereto.
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the Holders of the Securities or
Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities or Coupons, if any.
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SECTION 11.03. Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements contained in this Indenture
by or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.04. Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer may be given or served
by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is
filed by the Issuer with the Trustee) to Texas Instruments Incorporated, Xxxx
Xxxxxx Xxx 000000, Xxxxxx, Xxxxx 00000-0000, Attn: Secretary. Any notice,
direction, request or demand by the Issuer or any Holder of Securities or
Coupons to or upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made at the Corporate Trust Office, Attn:
Corporate Trustee Administration Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his or her last address as it appears in the
Security register. In any case where notice to such Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice to Holders of
Unregistered Securities, such notice shall be sufficiently given to Holders of
Unregistered Securities if published in an Authorized Newspaper in London and
New York and, if the Unregistered Securities of such series are then listed on
the Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, in Luxembourg, or in any
other required city or, if not practicable, elsewhere in Europe on a Business
Day at least twice, the first such publication to be not earlier than the
earliest date, and not later than the latest date, prescribed for the giving of
such notice. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner
64
of giving such notice as shall be satisfactory to the Trustee shall be deemed to
be a sufficient giving of such notice.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice of any event to Holders
of Registered Securities when said notice is required to be given pursuant to
any provision of this Indenture or of the Securities, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice. Neither the failure to give notice, nor any
defect in any notice so given, to any particular Holder of a Registered Security
shall affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice by publication to Holders
of Unregistered Securities given as provided above.
In case, by reason of the suspension of publication of any Authorized
Newspaper or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Unregistered
Securities in an Authorized Newspaper or Authorized Newspapers as required by
this Indenture or by the Unregistered Securities, then such method of
publication or notification to Holders of Unregistered Securities as shall be
made in a manner satisfactory to the Trustee shall constitute a sufficient
publication of such notice. Neither the failure to give notice by publication to
Holders of Unregistered Securities as provided above nor any defect in any
notice as published shall affect the sufficiency of any notice mailed to Holders
of Registered Securities. 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 11.05. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
65
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with and (d) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his or her
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his or her certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his or her certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any such Security or Coupon, or the last day on which a Holder has the right
to
66
convert any Security, shall not be a Business Day, then payment of interest or
principal, or any conversion, need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
the date of maturity or the date fixed for redemption or on such last day for
conversion, and no interest shall accrue for the period after such date.
SECTION 11.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939, such incorporated provision shall control.
SECTION 11.08. New York Law to Govern. This Indenture and each Security
and Coupon shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
such State, except as may otherwise be required by mandatory provisions of law.
SECTION 11.09. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 11.11. Securities in a Foreign Currency or in euro. Unless
otherwise specified in an Officers' Certificate delivered pursuant to Section
2.03 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars (including euro), then the
principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar
buying rate for that currency for cable transfers quoted in The City of New York
as certified for customs purposes by the Federal Reserve Bank of New York. If
such Market Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations or
67
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question, which for purposes of the euro
shall be Brussels, Belgium, or such other quotations or rates of exchange as the
Trustee shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a series
denominated in a currency other than Dollars in connection with any action taken
by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Issuer
and all Holders.
SECTION 11.12. Judgment Currency. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New
York Banking Day next preceding that on which final unappealable judgment is
given and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or legal holiday in The City of New York or a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to close.
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ARTICLE 12
SUBORDINATION OF SECURITIES
SECTION 12.01. Agreement of Subordination. The Issuer covenants and
agrees, and each holder of Securities issued hereunder by his acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article 12; and each Securityholder, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions.
The payment of the principal of, premium, if any, and interest on all
Securities issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and subject in right of payment to the prior payment
in full of all Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article 12 shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 12.02. Payments to Securityholders. In the event and during the
continuation of any default in the payment of principal, premium, interest or
any other payment due on any Senior Indebtedness continuing beyond the period of
grace, if any, specified in the instrument or lease evidencing such Senior
Indebtedness, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no payment shall be made by the Issuer
with respect to the principal of, or premium, if any, or interest on the
Securities, except sinking fund payments made by the acquisition of Securities
under Section 13.06 prior to the happening of such default and payments made
pursuant to Article 10 hereof from monies deposited with the Trustee pursuant
thereto prior to the happening of such default.
Upon any payment by the Issuer, or distribution of assets of the Issuer
of any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the
Issuer, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full, or payment thereof provided for
in money in accordance with its terms, before any payment is made on account of
the principal (and premium, if any) or interest on the Securities (except
payments made pursuant to Article 10 hereof from monies deposited with the
Trustee pursuant thereto prior to the happening of such dissolution, winding-up,
liquidation or reorganization); and upon any such dissolution or winding-up or
liquidation or reorganization any payment by the Issuer, or distribution of
assets of the Issuer of any kind or
69
character, whether in cash, property or securities, to which the holders of the
Securities or the Trustee would be entitled, except for the provisions of this
Article 12, shall (except as aforesaid) be paid by the Issuer or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the holders of the Securities or by
the Trustee under this Indenture if received by them or it, directly to the
holders of Senior Indebtedness (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders, as calculated by
the Issuer) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior Indebtedness in full, in money
or money's worth, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness, before any payment or distribution
is made to the holders of the Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Issuer of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the holders of the Securities before all Senior Indebtedness is paid
in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Issuer, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article 12, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Issuer as
reorganized or readjusted, or securities of the Issuer or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article 12 with respect
to the Securities to the payment of all Senior Indebtedness which may at the
time be outstanding; provided that (i) the Senior Indebtedness is assumed by the
new corporation, if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of the Senior Indebtedness (other than
leases) and of leases which are assumed are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Issuer with, or the merger of the Issuer into, another corporation or the
liquidation or dissolution of
70
the Issuer following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article 9 hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 12.02
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article 9 hereof.
Nothing in this Section 12.02 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.06.
SECTION 12.03. Subrogation of Securities. Subject to the payment in
full of all Senior Indebtedness, the rights of the holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Issuer
applicable to the Senior Indebtedness until the principal of (and premium, if
any) and interest on the Securities shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article 12, and no payment over pursuant to the provisions of this Article 12,
to or for the benefit of the holders of Senior Indebtedness by holders of the
Securities or the Trustee, shall, as between the Issuer, its creditors other
than holders of Senior Indebtedness, and the holders of the Securities, be
deemed to be a payment by the Issuer to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article 12 are and
are intended solely for the purpose of defining the relative rights of the
holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Nothing contained in this Article 12 or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Issuer, its
creditors other than the holders of Senior Indebtedness, and the holders of the
Securities, the obligation of the Issuer, which is absolute and unconditional,
to pay to the holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Securities and creditors of the Issuer other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article 12 of the holders of Senior
Indebtedness in respect of cash, property or securities of the Issuer received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Issuer referred to in
this Article 12, the Trustee, subject to the provisions of Section 6.01, and the
holders
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of the Securities shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or to the holders
of the Securities, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Issuer, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 12.
SECTION 12.04. Authorization by Securityholders. Each holder of a
Security by his acceptance thereof authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 12 and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 12.05. Notice to Trustee. The Issuer shall give prompt written
notice to a Responsible Officer of the Trustee of any fact known to the Issuer
which would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article 12.
Notwithstanding the provisions of this Article 12 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment of monies to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article
12, unless and until a Responsible Officer of the Trustee shall have received
written notice thereof at the Corporate Trust Office of the Trustee from the
Issuer or a holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 6.01, shall be entitled in all respects to
assume that no such facts exist; provided that if on a date not fewer than three
Business Days prior to the date upon which by the terms hereof any such monies
may become payable for any purpose (including, without limitation, the payment
of the principal of (or premium, if any) or interest on any Security) the
Trustee shall not have received, with respect to such monies, the notice
provided for in this Section 12.05, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such prior date.
Notwithstanding anything to the contrary hereinbefore set forth,
nothing shall prevent any payment by the Issuer or the Trustee to the
Securityholders of monies in connection with a redemption of Securities if (i)
notice of such redemption has been given pursuant to Article 13 or Section 10.01
hereof prior to
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the receipt by the Trustee of written notice as aforesaid, and (ii) such notice
of redemption is given not earlier than 60 days before the redemption date.
The Trustee conclusively shall be entitled to rely on the delivery to
it of a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a trustee on behalf
of any such holder or holders. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article 12, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 12, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 12.06. Trustee's Relation to Senior Indebtedness. The Trustee
in its individual capacity shall be entitled to all the rights set forth in this
Article 12 in respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness and nothing elsewhere in
this Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 12, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to holders of Securities, the Issuer or any other Person money or assets
to which any holder of Senior Indebtedness shall be entitled by virtue of this
Article 12 or otherwise.
SECTION 12.07. No Impairment of Subordination. No right of any present
or future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Issuer or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Issuer with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
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SECTION 12.08. Rights of Trustee. Nothing in this Article 12 shall
apply to claims of or payments to, the Trustee pursuant to Section 6.06 or
10.05.
ARTICLE 13
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 13.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series, except as otherwise specified, as contemplated by Section 2.03 for
Securities of such series.
SECTION 13.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Securities of such series at their last addresses as they shall appear upon
the registry books. Notice of redemption to the Holders of Unregistered
Securities to be redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 4.01, shall be given by mailing
notice of such redemption, by first class mail, postage prepaid, at least 30
days and not more than 60 prior to the date fixed for redemption, to such
Holders at such addresses as were so furnished to the Trustee (and, in the case
of any such notice given by the Issuer, the Trustee shall make such information
available to the Issuer for such purpose). Notice of redemption to all other
Holders of Unregistered Securities shall be published in an Authorized Newspaper
in the Borough of Manhattan, The City of New York, and in an Authorized
Newspaper in London (and, if required by Section 3.08, in an Authorized
Newspaper in Luxembourg), in each case, once in each of three successive
calendar weeks, the first publication to be not less than 30 nor more than 60
days prior to the date fixed for redemption. Any notice which is given in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. Failure to give notice or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities and,
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in the case of Securities with Coupons attached thereto, of all Coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue and shall
also specify, if applicable, the Conversion Price then in effect and the date on
which the right to convert such Securities or the portions thereof to be
redeemed will expire. In case any Security of a series is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.04) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption (other than those theretofore
surrendered for conversion into Common Stock) at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If any
Security called for redemption is converted pursuant hereto, any money deposited
with the Trustee or any paying agent or so segregated and held in trust for the
redemption of such Security shall be paid to the Issuer upon the Issuer's
request, or, if then held by the Issuer, shall be discharged from such trust.
The Issuer will deliver to the Trustee at least 70 days prior to the date fixed
for redemption (unless a shorter time period shall be acceptable to the Trustee)
an Officers' Certificate (which need not comply with Section 11.05) stating the
aggregate principal amount of Securities to be redeemed. In case of a redemption
at the election of the Issuer prior to the expiration of any restriction on such
redemption, the Issuer shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an Officers'
Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for Securities of such
series or
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any multiple thereof. The Trustee shall promptly notify the Issuer in writing of
the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed. If any Security selected for partial redemption is
surrendered for conversion after such selection, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Upon any redemption of less than all the Securities, the Issuer and
the Trustee may treat as Outstanding Securities surrendered for conversion
during the period of 15 days next preceding the mailing of a notice of
redemption, and need not treat as Outstanding any Security authenticated and
delivered during such period in exchange for the unconverted portion of any
Security converted in part during such period.
SECTION 13.03. Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Issuer may arrange for the
purchase and conversion in accordance with Article 14 of any Securities called
for redemption by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the paying agent, in trust
for the Securityholders, on or before the close of business on the redemption
date, an amount that, together with any amounts deposited with the paying agent
by the Issuer for the redemption of such Securities, is not less than the
redemption price of such Securities together with interest to and including the
redemption date. Notwithstanding anything to the contrary contained in this
Article 13, the obligation of the Issuer to pay the redemption price of such
Securities shall be deemed to be satisfied and discharged to the extent such
amount is so paid by such purchasers. If such an agreement is entered into, any
Securities not duly surrendered for conversion in accordance with Article 14 by
the Holders thereof may, at the option of the Issuer, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything to the contrary contained in Article 14) surrendered
by such purchasers for conversion, all as of immediately prior to the close of
business on the redemption date, subject to payment of the above amount as
aforesaid. The paying agent shall hold and pay to the Holders whose Securities
are selected for redemption any such amount paid to it in the same manner as it
would moneys deposited with it by the Issuer for the redemption of Securities.
Without the paying agent's and the Trustee's prior written consent, no
arrangement between the Issuer and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the paying agent or the
Trustee as set forth in this Indenture, and the Issuer agrees to
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indemnify the paying agent and the Trustee from, and hold them harmless against,
any loss, liability or expense arising out of or in connection with any such
arrangement for the purchase and conversion of any Securities between the Issuer
and such purchasers, including the costs and expenses incurred by the paying
agent or the Trustee in the defense of any claim or liability arising out of or
in connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
SECTION 13.04. Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.05 and 10.04, such Securities shall cease
from and after the date fixed for redemption to be convertible into Common
Stock, if applicable, and to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, together with all
Coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided, that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to the
Holders of the Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.03 and 2.07 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security and, if applicable, such Security shall remain
convertible into Common Stock until the principal of such Security shall have
been paid or duly provided for.
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If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 13.05. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer or (b) an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
SECTION 13.06. Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10 and, if applicable, receive credit for Securities (not
previously so credited) converted into Common Stock and so delivered to the
Trustee for cancellation, (b) receive credit for optional sinking fund payments
(not previously so credited) made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be
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received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers' Certificate
(which need not contain the statements required by Section 11.05) (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Securities of such series and
the basis for such credit, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to deliver
such Officers' Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or the equivalent thereof in any Foreign Currency or in euro or a
lesser sum in Dollars or in any Foreign Currency or in euro if the Issuer shall
so request) with respect to the Securities of any particular series, such cash
shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 (or the equivalent thereof in any Foreign Currency or euro) or
less and the Issuer makes no such request then it shall be carried over until a
sum in excess of
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$50,000 (or the equivalent thereof in any Foreign Currency or euro) is
available. The Trustee shall select, in the manner provided in Section 13.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Issuer) inform the Issuer of the serial numbers
of the Securities of such series (or portions thereof) so selected. Securities
shall be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officers' Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment date
as being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in such Officers'
Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing), shall cause notice of redemption of the Securities of such series
to be given in substantially the manner provided in Section 13.02 (and with the
effect provided in Section 13.04) for the redemption of Securities of such
series in part at the option of the Issuer. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series and,
together with such payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series, shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity. The Issuer's obligation
to make a mandatory or optional sinking fund payment shall automatically be
reduced by an amount equal to the sinking fund redemption price allocable to any
Securities or portions thereof called for redemption pursuant to the preceding
paragraph on any sinking fund payment date and converted into Common Stock;
provided, that, if the Trustee is not the conversion agent for the Securities,
the Issuer or such conversion agent shall give the Trustee written notice prior
to the date fixed for redemption of the principal amount of Securities or
portions thereof so converted.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in
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payment of interest on such Securities or of any Event of Default except that,
where the mailing of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall redeem or cause to be redeemed such
Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article 5 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 5.10,
or the default cured on or before the 60th day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE 14
CONVERSION OF SECURITIES
SECTION 14.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are convertible into
Common Stock, except as otherwise specified, as contemplated by Section 2.03 for
Securities of such series.
SECTION 14.02. Exercise of Conversion Privilege. In order to exercise
the conversion privilege, the Holder of any Security to be converted shall
surrender such Security, together with all unmatured Coupons, to the Issuer at
any time during usual business hours at its office or agency maintained for the
purpose as provided in this Indenture, accompanied by a fully executed written
notice, in substantially the form set forth on the reverse of the Security, that
the Holder elects to convert such Security or a stated portion thereof
constituting a multiple of the minimum authorized denomination thereof, and, if
such Security is surrendered for conversion during the period between the close
of business on any record date for such Security and the opening of business on
the related interest payment date (unless such Security shall have been called
for redemption on a redemption date within such period or on such interest
payment date), accompanied also by payment of an amount equal to the interest
payable on such interest payment date on the portion of the principal amount of
the Security being surrendered for conversion. A Holder of any Security on a
record date for such Security who converts such Security on the related interest
payment date will receive the interest payable on such Security, and such
converting Holder need not include a payment for any such interest upon
surrender of such Security for conversion. Such notice shall also state the name
or names (with address) in
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which the certificate or certificates for shares of Common Stock shall be
issued. Securities and any appurtenant Coupons surrendered for conversion shall
(if so required by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder or his
or her attorney duly authorized in writing. As promptly as practicable after the
receipt of such notice and the surrender of such Security and any appurtenant
Coupons as aforesaid, the Issuer shall, subject to the provisions of Section
14.07, issue and deliver at such office or agency to such Holder, or on his or
her written order, a certificate or certificates for the number of full shares
of Common Stock issuable on such conversion of Securities in accordance with the
provisions of this Article and cash, as provided in Section 14.03, in respect of
any fraction of a share of Common Stock otherwise issuable upon such conversion.
Such conversion shall be deemed to have been effected immediately prior to the
close of business on the date (herein called the "Date of Conversion") on which
such notice shall have been received by the Issuer and such Security and any
appurtenant Coupons shall have been surrendered as aforesaid, and the Person or
Persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be deemed to have
become on the Date of Conversion the holder or holders of record of the shares
represented thereby; provided, however, that any such surrender on any date when
the stock transfer books of the Issuer shall be closed shall constitute the
Person or Persons in whose name or names the certificate or certificates for
such shares are to be issued as the recordholder or holders thereof for all
purposes at the opening of business on the next succeeding day on which such
stock transfer books are open but such conversion shall nevertheless be at the
Conversion Price in effect at the close of business on the date when such
Security and any appurtenant Coupons shall have been so surrendered with the
conversion notice. In the case of conversion of a portion, but less than all, of
a Security, the Issuer shall execute, and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Issuer, a Security or
Securities in the aggregate principal amount of the unconverted portion of the
Security surrendered. Except as otherwise expressly provided in this Indenture,
no payment or adjustment shall be made for interest accrued on any Security (or
portion thereof) converted or for dividends or distributions on any Common Stock
issued upon conversion of any Security; provided, however, that, in the case of
any Securities which are converted after the close of business on a relevant
record date and on or prior to the next succeeding interest payment date,
installments of interest which are due and payable on the next succeeding
interest payment date shall be payable on such interest payment date
notwithstanding such conversion (unless such Security shall have been called for
redemption on a redemption date after the close of business on such record date
and prior to the opening of business on such interest payment date) and such
interest (whether or not punctually paid or duly provided for) shall be paid to
the
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Holder of such Securities registered as such at the close of business on the
relevant record date according to their terms and the provisions of Section
2.07.
If any Security surrendered for conversion shall not be accompanied by
all appurtenant Coupons maturing after the Date of Conversion, such Security may
be converted after payment in cash by the Holder thereof in an amount equal to
the face amount of all such missing Coupons, or the surrender of such missing
Coupons may be waived by the Issuer and any conversion agent if there be
furnished to the Issuer and any such conversion agent such security or indemnity
as they may require to save each of them harmless.
SECTION 14.03. Fractional Interests. No fractions of shares or scrip
representing fractions of shares shall be issued upon conversion of Securities.
If more than one Security shall be surrendered for conversion at one time by the
same Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities so surrendered. If any fraction of a share of Common Stock would,
except for the provisions of this Section, be issuable on the conversion of any
Security or Securities, the Issuer shall make payment in lieu thereof in an
amount of Dollars equal to the value of such fraction computed on the basis of
the last sale price of the Common Stock as reported on the Composite Tape for
New York Stock Exchange - Listed Stocks (or if not listed or admitted to trading
on such Exchange, then on the principal national securities exchange on which
the Common Stock is listed or admitted to trading, or, if not listed or admitted
to trading on any national securities exchange, then as reported by the National
Association of Securities Dealers, Inc. through NASDAQ or a similar organization
if NASDAQ is no longer reporting information) on the last trading day prior to
the Date of Conversion or, if no such sale takes place on such day, the last
sale price for such day shall be the average of the closing bid and asked prices
regular way on the New York Stock Exchange (or if not listed or admitted to
trading on such Exchange, on the principal national securities exchange on which
the Common Stock is listed or admitted to trading, or if not listed or admitted
to trading on any national securities exchange, the average of the highest bid
and lowest asked prices as reported by the National Association of Securities
Dealers, Inc. through NASDAQ or a similar organization if NASDAQ is no longer
reporting information) (any such last sale price being hereinafter referred to
as the "Last Sale Price"). If on such trading day the Common Stock is not quoted
by any such organization, the fair value of such Common Stock on such day, as
determined by the Board of Directors, shall be used. For the purpose of this
Section 14.03, the term "trading day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday, other than any day on which securities are not
traded on such exchange or in such market.
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SECTION 14.04. Adjustment of Conversion Price. The Conversion Price
shall be subject to adjustment from time to time as follows:
(a) In case the Issuer shall (i) pay a dividend or make a distribution
on Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares
of Common Stock into a greater number of shares or (iii) combine its outstanding
shares of Common Stock into a smaller number of shares, the Conversion Price in
effect immediately prior to such action shall be adjusted as provided below so
that the Holder of any Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock which he or she would
have or been entitled to receive immediately following such action had such
Security been converted immediately prior thereto. An adjustment made pursuant
to this subsection (a) shall become effective immediately, except as provided in
subsection (e) below, after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision or combination.
(b) In case the Issuer shall issue rights, warrants or options to all
holders of Common Stock entitling them (for a period not exceeding 45 days from
the date of such issuance) to subscribe for or purchase shares of Common Stock
at a price per share less than the current market price per share (as determined
pursuant to subsection (d) below) of the Common Stock on the record date
mentioned below, the Conversion Price shall be adjusted to a price, computed to
the nearest cent, so that the same shall equal the price determined by
multiplying:
(i) the Conversion Price in effect immediately prior to the date
of issuance of such rights, warrants or options by a fraction, of
which
(ii) the numerator shall be (A) the number of shares of Common
Stock outstanding on the date of issuance of such rights, warrants or
options immediately prior to such issuance, plus (B) the number of
shares which the aggregate offering price of the total number of
shares so offered for subscription or purchase would purchase at such
current market price (determined by multiplying such total number of
shares by the exercise price of such rights, warrants or options and
dividing the product so obtained by such current market price), and of
which
(iii) the denominator shall be (A) the number of shares of Common
Stock outstanding on the date of issuance of such rights, warrants or
options, immediately prior to such issuance, plus (B) the number of
additional shares of Common Stock which are so offered for
subscription or purchase.
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Such adjustment shall become effective immediately, except as provided
in subsection (e) below, after the record date for the determination of holders
entitled to receive such rights, warrants or options.
(c) In case the Issuer shall distribute to substantially all holders
of Common Stock evidences of indebtedness, equity securities (including equity
interests in the Issuer's Subsidiaries) other than Common Stock or other assets
(other than cash dividends paid out of earned surplus of the Issuer or, if there
shall be no earned surplus, out of net profits for the fiscal year in which the
dividend is made and/or the preceding fiscal year), or shall distribute to
substantially all holders of Common Stock rights, warrants or options to
subscribe to securities (other than those referred to in subsection (b) above),
then in each such case the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction of which the
numerator shall be the current market price per share (determined as provided in
subsection (d) below) of the Common Stock on the record date mentioned below
less the then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value, and
described in a Board Resolution filed with the Trustee) of the portion of the
assets, evidences of indebtedness and equity securities so distributed or of
such subscription rights, warrants or options applicable to one share of Common
Stock, and of which the denominator shall be such current market price per share
of the Common Stock. Such adjustment shall become effective immediately, except
as provided in subsection (e) below, after the record date for the determination
of stockholders entitled to receive such distribution.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Common Stock on any date shall be
deemed to be the average of the Last Sale Prices of a share of Common Stock for
the five consecutive trading days commencing not more than 20 trading days
before, and ending not later than, the earliest of the date in question and the
date before the "ex" date with respect to the issuance or distribution requiring
such computation. If on any such trading day the Common Stock is not quoted by
any organization referred to in the definition of Last Sale Price in Section
14.03, the fair value of the Common Stock on such day, as determined by the
Board of Directors, shall be used. For purposes of this paragraph, the term
"'ex' date", when used with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading (or, if not so listed or admitted, on NASDAQ or a similar organization
if NASDAQ is no longer reporting trading information) without the right to
receive such issuance or distribution.
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(e) In any case in which this Section shall require that an adjustment
be made immediately following a record date, the Issuer may elect to defer the
effectiveness of such adjustment (but in no event until a date later than the
effective time of the event giving rise to such adjustment), in which case the
Issuer shall, with respect to any Security converted after such record date and
before such adjustment shall have become effective (i) defer making any cash
payment pursuant to Section 14.03 or issuing to the Holder of such Security the
number of shares of Common Stock and other capital stock of the Issuer issuable
upon such conversion in excess of the number of shares of Common Stock and other
capital stock of the Issuer issuable thereupon only on the basis of the
Conversion Price prior to adjustment, and (ii) not later than five Business Days
after such adjustment shall have become effective, pay to such Holder the
appropriate cash payment pursuant to Section 14.03 and issue to such Holder the
additional shares of Common Stock and other capital stock of the Issuer issuable
on such conversion.
(f) No adjustment in the Conversion Price shall be required if
Securityholders are to participate in the transaction on a basis and with notice
that the Board of Directors determines to be fair and appropriate in light of
the basis and notice on which holders of Common Stock participate in the
transaction. In addition, no adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in the Conversion Price; provided, that any adjustments which by reason
of this subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Article shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Issuer shall promptly (i) file with the Trustee and each conversion agent an
Officers' Certificate setting forth the Conversion Price after such adjustment
and setting forth in reasonable detail the facts requiring such adjustment and
the calculations on which the adjustment is based, which certificate shall be
conclusive evidence of the correctness of such adjustment and which shall be
made available by the Trustee to the Holders of Securities for inspection
thereof and (ii) mail or cause to be mailed a notice of such adjustment, setting
forth the adjusted Conversion Price and the date on which such adjustment became
or becomes effective, to each Holder of Securities at his or her address as the
same appears on the registry books of the Issuer.
Anything in this Section to the contrary notwithstanding, the Issuer
shall be entitled to make such reductions in the Conversion Price, in addition
to those required by this Section, as it in its discretion shall determine to be
advisable in
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order that any stock dividend, subdivision or combination of shares,
distribution of rights, warrants or options to purchase stock or securities,
distribution of securities convertible into or exchangeable for stock or
distribution of other assets (other than cash dividends) hereafter made by the
Issuer to its stockholders shall not be taxable.
SECTION 14.05. Continuation of Conversion Privilege in Case of
Reclassification, Reorganization, Change, Merger, Consolidation or Sale of
Assets. In case of any reclassification or change of outstanding shares of
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination), or in case of any consolidation of the Issuer with, or merger of
the Issuer with or into, any other Person, any merger of another Person into the
Issuer (other than a merger which does not result in any reclassification,
change, conversion, exchange or cancellation of outstanding shares of Common
Stock of the Issuer) or any sale or transfer of all or substantially all of the
assets of the Issuer, the Issuer, or the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture complying with
the provisions of Article 9, in form satisfactory to the Trustee, providing that
the Holder of each Security then Outstanding shall have the right thereafter to
convert such Security only into the kind and amount of securities, cash and
other property receivable upon such reclassification, change, consolidation,
merger, sale or transfer by a holder of the number of shares of Common Stock of
the Issuer into which such Security might have been converted immediately prior
to such reclassification, change, consolidation, merger, sale or transfer,
assuming such holder of Common Stock of the Issuer (a) is not a Person with
which the Issuer consolidated or into which the Issuer merged or which merged
into the Issuer or to which such sale or transfer was made, as the case may be
("constituent Person"), or an affiliate of a constituent Person and (b) failed
to exercise his or her rights of an election, if any, as to the kind or amount
of securities, cash and other property receivable upon such reclassification,
change, consolidation, merger, sale or transfer (provided, that, if the kind or
amount of securities, cash and other property receivable upon such
reclassification, change, consolidation, merger, sale or transfer is not the
same for each share of Common Stock of the Issuer held immediately prior to such
reclassification, change, consolidation, merger, sale or transfer by other than
a constituent Person or an affiliate thereof and in respect of which such rights
of election shall not have been exercised ("non-electing share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such reclassification, change, consolidation, merger,
sale or transfer by each non-electing share shall be deemed to be the kind and
amount so receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for adjustments which, for events
subsequent to the
87
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. If, in the
case of any such reclassification, change, consolidation, merger, sale or
transfer, the stock or other securities and property (including cash) receivable
thereupon by a holder of shares of Common Stock includes shares of stock or
other securities and property (including cash) of a corporation other than the
successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, sale or transfer, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders
of the Securities as the Board of Directors shall reasonably consider necessary
by reason of the foregoing. The above provisions of this Section shall similarly
apply to successive reclassifications, changes, consolidations, mergers, sales
or transfers.
Notice of the execution of each such supplemental indenture shall be
mailed to each Holder of Securities at his or her address as the same appears on
the registry books of the Issuer.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property or cash receivable by Holders of Securities upon
the conversion of their Securities after any such reclassification, change,
consolidation, merger, sale or transfer or to any adjustment to be made with
respect thereto, but, subject to the provisions of Sections 6.11 and 6.02, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers' Certificate (which the Issuer
shall be obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
SECTION 14.06. Notice of Certain Events. In case:
(a) the Issuer shall declare a dividend (or any other distribution)
payable to the holders of Common Stock (other than cash dividends paid out of
the earned surplus of the Issuer or, if there shall be no earned surplus, out of
net profits for the fiscal year in which the dividend is made and/or the
preceding fiscal year, and dividends payable in Common Stock); or
(b) the Issuer shall authorize the granting to the holders of Common
Stock of rights, warrants or options to subscribe for or purchase any shares of
stock of any class or of any other rights, warrants or options; or
88
(c) the Issuer shall authorize any reclassification or change of the
Common Stock (other than a subdivision or combination of its oustanding shares
of Common Stock or a change in par value, or from par value to no par value, or
from no par value to par value), or any consolidation or merger to which the
Issuer is a party and for which approval of any stockholders of the Issuer is
required, or the sale or transfer of all or substantially all the property or
business of the Issuer; or
(d) there shall be proposed any voluntary or involuntary dissolution,
liquidation or winding-up of the Issuer;
then, the Issuer shall cause to be filed with the Trustee, and, if other than
the Corporate Trust Office of the Trustee, at the office or agency maintained
for the purpose of conversion of the Securities as provided in Section 3.02, and
shall cause to be mailed to each Holder of Securities, at his or her address as
it shall appear on the registry books of the Issuer, as promptly as possible but
in any event at least 20 days before the date hereinafter specified (or the
earlier of the dates hereinafter specified, in the event that more than one date
is specified), a notice stating the date on which (i) a record is expected to be
taken for the purpose of such dividend, distribution, rights, warrants or
options, or if a record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend, distribution, rights or
warrants are to be determined, or (ii) such reclassification, change,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is
expected to become effective and the date, if any is to be fixed, as of which it
is expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities or other property deliverable upon
such reclassification, change, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
SECTION 14.07. Taxes on Conversion. The issuance and delivery of
certificates for shares of Common Stock on conversion of Securities shall be
made without charge to the converting Holder of Securities for such certificates
or for any documentary, stamp or similar taxes payable to the United States of
America or any political subdivision or taxing authority thereof in respect of
the issuance or delivery of such certificates; provided, however, that the
Issuer shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance of certificates for shares of Common
Stock, and no such issue or delivery shall be made unless and until the Person
requesting such issue or delivery has paid to the Issuer the amount of any such
tax or has established, to the satisfaction of the Issuer, that such tax has
been paid.
SECTION 14.08. Issuer to Provide Common Stock. The Issuer covenants
that it will reserve and keep available, free from preemptive rights, out of its
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authorized but unissued shares, solely for the purpose of issue upon conversion
of Securities as herein provided, sufficient shares to provide for the
conversion of the Securities from time to time as such Securities are presented
for conversion.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any Federal or State law before such shares may be
validly issued or delivered upon conversion, then the Issuer covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be; provided, however, that nothing in
this Section shall be deemed to affect in any way the obligations of the Issuer
to convert Securities into Common Stock as provided in this Article.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Issuer will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Issuer may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Issuer covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be duly and validly issued
and fully paid and non-assessable by the Issuer and free of preemptive rights
and that, if the Common Stock is then listed on any national securities
exchange, the shares of Common Stock which may be issued upon conversion of
Securities will be similarly listed at the time of such issuance.
SECTION 14.09. Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor any conversion agent or agent of the Trustee shall at
any time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the Officers' Certificate referred to in
Section 14.04(g) or 14.05, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any conversion agent nor any agent of the Trustee shall be
accountable with respect to the validity, registration, listing, or value (or
the kind or amount) of any shares of Common Stock, or of any securities or cash
or other property, which may at any time be issued or delivered upon the
conversion of any Security; and neither the Trustee nor any agent of the Trustee
nor any conversion agent makes any representation with respect thereto. Neither
the Trustee nor any conversion agent nor any agent of the Trustee shall be
responsible for any failure of the Issuer to make any cash payment or to issue,
register the transfer of or deliver any shares of Common Stock or stock
certificates or other securities or property upon the surrender of any
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Security and any appurtenant Coupons for the purpose of conversion or, subject
to Sections 6.11 and 6.02, to comply with any of the covenants of the Issuer
contained in this Article.
SECTION 14.10. Return of Funds Deposited for Redemption of Converted
Securities. Any funds which at any time shall have been deposited by the Issuer
or on its behalf with the Trustee or any other paying agent for the purpose of
paying the principal of and interest on any of the Securities and which shall
not be required for such purposes because of the conversion of such Securities,
as provided in this Article, shall after such conversion, upon the written
request of the Issuer, be repaid to the Issuer by the Trustee or such other
paying agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of December 16, 1999.
TEXAS INSTRUMENTS INCORPORATED
By /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
Treasurer and
Chief Financial Officer
[CORPORATE SEAL]
Attest:
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, Trustee
By /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
[CORPORATE SEAL]
Attest:
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Trust Officer
92
STATE OF TEXAS )
:ss
COUNTY OF DALLAS )
On this 16th day of December, 1999 before me personally came, Xxxxxxx X.
Xxxxxxxxxx to me personally known, who, being by me duly sworn, did depose and
say that he resides at Lipan, Texas, that he is the Senior Vice President,
Treasurer and Chief Financial Officer of TEXAS INSTRUMENTS INCORPORATED, one of
the corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
/s/ Xxxxxxx Xxxxx
-----------------------------------
Notary Public
93
STATE OF TEXAS )
:ss
COUNTY OF XXXXXX )
On this 16th day of December, 1999 before me personally came, Xxxx X. Xxxxx to
me personally known, who, being by me duly sworn, did depose and say that he
resides at Houston, Texas, that he is a Vice President of CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Xxxxxxxx Xxxx-Xxxxxxx
-----------------------------------
Notary Public
94
