EXHIBIT 4.5
NORTEL NETWORKS LIMITED,
as Issuer,
NORTEL NETWORKS CORPORATION,
as Guarantor
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
----------------------------------
SENIOR INDENTURE
DATED AS OF __, 2002
----------------------------------
NORTEL NETWORKS LIMITED
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF __, 2002
TRUST INDENTURE ACT SECTION INDENTURE SECTION
--------------------------- -----------------
310(a)(1)....................................................... 609
(a)(2)...................................................... 609
(a)(3)...................................................... Not Applicable
(a)(4)...................................................... Not Applicable
(b)......................................................... 609
(c)......................................................... Not Applicable
311(a).......................................................... 610
(b)......................................................... 610
312(a).......................................................... 701
(b)......................................................... 701(b)
(c)......................................................... 701(c)
313(a).......................................................... 702(a)
(b)......................................................... 702(a)
(c)......................................................... 702(a)
(d)......................................................... 702(b)
314(a).......................................................... 703(b)
(b)......................................................... Not Applicable
(c)(1)...................................................... 102
(c)(2)...................................................... 102
(c)(3)...................................................... Not Applicable
(d)......................................................... Not Applicable
(e)......................................................... 102
315(a).......................................................... 601(b)
(b)......................................................... 605
(c)......................................................... 601(a)
(d)......................................................... 601(c)
(d)(1)...................................................... 601(b)
(d)(2)...................................................... 601(c)(2)
(d)(3)...................................................... 601(c)(3)
(e)......................................................... 511
316(a)(1)(A).................................................... 506(a)(1)
(a)(1)(B)................................................... 506(a)(2)
503(a)
(a)(2)...................................................... Not Applicable
(b)......................................................... 508
317(a)(1)....................................................... 509
(a)(2)...................................................... 510
(b)......................................................... 1003
318(a).......................................................... 107
(i)
TABLE OF CONTENTS
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
(ii)
TABLE OF CONTENTS
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PARTIES ............................................................................................1
RECITALS ............................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.......................................................................1
(1) "Act"........................................................................1
(2) "Affiliate...................................................................1
(3) "Authorized Newspaper".......................................................1
(4) "Authorized Officers"........................................................2
(5) "Board of Directors".........................................................2
(6) "Board Resolution"...........................................................2
(7) "Business Day"...............................................................2
(8) "Commission".................................................................2
(9) "Components".................................................................2
(10) "Conversion Date"............................................................2
(11) "Corporate Trust Office".....................................................3
(12) "corporation"................................................................3
(13) "Corporation"................................................................3
(14) "Debt Securities"............................................................3
(15) "Defaulted Interest".........................................................3
(16) "Depositary".................................................................3
(17) "Dollar" or "$"..............................................................3
(18) "Event of Default"...........................................................3
(19) "Exchange Act"...............................................................3
(20) "Exchange Rate"..............................................................3
(21) "Exchange Rate Officers' Certificate"........................................4
(22) "Foreign Currency"...........................................................4
(23) "Global Security"............................................................4
(24) "Guarantee"..................................................................4
(iii)
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(25) "Guarantor"..................................................................5
(26) "Guarantor Order" and "Guarantor Request"....................................5
(27) "Holder".....................................................................5
(28) "Indenture"..................................................................5
(29) "interest"...................................................................5
(30) "Interest Payment Date"......................................................5
(31) "Issuer".....................................................................5
(32) "Issuer Order" and "Issuer Request"..........................................5
(33) "Maturity"...................................................................5
(34) "Officers' Certificate"......................................................5
(35) "Opinion of Counsel".........................................................5
(36) "Original Issue Discount Security"...........................................5
(37) "Outstanding"................................................................6
(38) "Paying Agent"...............................................................6
(39) "Person".....................................................................6
(40) "Place of Payment"...........................................................6
(41) "Predecessor Security".......................................................7
(42) "Redemption Date"............................................................7
(43) "Redemption Price"...........................................................7
(44) "Regular Record Date"........................................................7
(45) "Responsible Officer"........................................................7
(46) "Security Register" and "Security Registrar".................................7
(47) "Special Record Date"........................................................7
(48) "Stated Maturity Date".......................................................7
(49) "Subsidiary".................................................................7
(50) "Trust Indenture Act"........................................................7
(51) "Trustee"....................................................................7
Section 102. Compliance Certificates and Opinions..............................................8
Section 103. Form of Documents Delivered to Trustee............................................8
Section 104. Acts of Holders...................................................................9
(iv)
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Section 105. Notices, etc., to Trustee, Issuer and Guarantor..................................10
Section 106. Notice to Holders; Waiver........................................................11
Section 107. Conflict with Trust Indenture Act................................................11
Section 108. Effect of Headings and Table of Contents.........................................11
Section 109. Successors and Assigns...........................................................11
Section 110. Separability Clause..............................................................12
Section 111. Benefits of Indenture............................................................12
Section 112. Governing Law, Etc...............................................................12
Section 113. Legal Holidays...................................................................13
ARTICLE TWO
DEBT SECURITY FORMS
Section 201. Forms Generally..................................................................13
Section 202. Forms of Debt Securities.........................................................13
Section 203. Guarantee by Guarantor; Form of Guarantee........................................14
Section 204. Form of Trustee's Certificate of Authentication..................................16
ARTICLE THREE
THE DEBT SECURITIES
Section 301. Amount Unlimited; Issuable in Series.............................................16
Section 302. Denominations....................................................................19
Section 303. Execution, Authentication, Delivery and Dating...................................19
Section 304. Temporary Debt Securities........................................................21
Section 305. Registration, Registration of Transfer and Exchange..............................22
Section 306. Mutilated, Destroyed, Lost or Stolen Debt Securities.............................24
Section 307. Payment of Interest; Interest Rights Preserved...................................24
Section 308. Persons Deemed Owners............................................................25
Section 309. Cancellation.....................................................................26
Section 310. Computation of Interest..........................................................26
Section 311. Payment in Currencies............................................................26
Section 312. Judgments........................................................................29
Section 313. CUSIP Numbers....................................................................29
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture..........................................30
Section 402. Application of Trust Money.......................................................31
ARTICLE FIVE
DEFAULTS AND REMEDIES
Section 501. Events of Default and Enforcement................................................31
Section 502. Waiver of Declaration............................................................33
Section 503. Waiver...........................................................................33
Section 504. Other Remedies...................................................................34
Section 505. Application of Money Collected...................................................34
Section 506. Control by Holders...............................................................34
Section 507. Limitation on Suits..............................................................35
Section 508. Rights of Holders To Receive Payment.............................................35
Section 509. Collection Suit by Trustee.......................................................35
Section 510. Trustee May File Proofs of Claim.................................................35
Section 511. Undertaking for Costs............................................................35
Section 512. Delay or Omission Not Waiver.....................................................36
Section 513. Waiver of Stay or Extension Laws.................................................36
ARTICLE SIX
THE TRUSTEE
Section 601. Duties of Trustee................................................................36
Section 602. Rights of Trustee................................................................37
Section 603. Individual Rights of Trustee.....................................................38
Section 604. Trustee's Disclaimer.............................................................38
Section 605. Notice of Defaults...............................................................38
Section 606. Compensation and Indemnity.......................................................38
Section 607. Replacement of Trustee...........................................................39
Section 608. Successor Trustee by Merger, etc.................................................41
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Section 609. Eligibility; Disqualification....................................................41
Section 610. Preferential Collection of Claims Against the Issuer.............................41
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, ISSUER AND GUARANTOR
Section 701. Preservation of Information; Communications to Holders..........................42
Section 702. Reports by Trustee...............................................................43
Section 703. Reports by the Issuer and the Guarantor..........................................43
ARTICLE EIGHT
AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Amalgamation and Merger of Issuer or Guarantor and
Conveyances Permitted Subject to Certain Conditions..............................44
Section 802. Rights and Duties of Successor Corporation.......................................44
Section 803. Officers' Certificate and Opinion of Counsel.....................................45
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders...............................45
Section 902. Supplemental Indentures with Consent of Holders..................................47
Section 903. Execution of Supplemental Indentures.............................................48
Section 904. Effect of Supplemental Indentures................................................48
Section 905. Conformity with Trust Indenture Act..............................................48
Section 906. Reference in Debt Securities to Supplemental Indentures..........................48
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.......................................49
Section 1002. Maintenance of Office or Agency..................................................49
Section 1003. Money for Debt Securities Payments to Be Held in Trust...........................49
Section 1004. Compliance Certificate...........................................................51
Section 1005. Waiver of Certain Covenants......................................................51
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ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
Section 1101. Applicability of Article.........................................................51
Section 1102. Election to Redeem; Notice to Trustee............................................51
Section 1103. Selection by Trustee of Debt Securities to Be Redeemed...........................51
Section 1104. Notice of Redemption.............................................................52
Section 1105. Deposit of Redemption Price......................................................52
Section 1106. Debt Securities Payable on Redemption Date.......................................53
Section 1107. Debt Security Redeemed in Part...................................................53
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.........................................................54
Section 1202. Satisfaction of Sinking Fund Payments with Debt Securities.......................54
Section 1203. Redemption of Debt Securities for Sinking Fund...................................54
ARTICLE THIRTEEN
DEFEASANCE
Section 1301. Discharge by Deposit of Money or Debt Securities.................................55
Section 1302. Defeasance of Certain Obligations................................................56
Section 1303. Application of Trust Money.......................................................56
Section 1304. Repayment to the Issuer..........................................................57
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
Section 1401. Purposes for Which Meetings May Be Called........................................57
Section 1402. Call, Notice and Place of Meetings...............................................57
Section 1403. Persons Entitled to Vote at Meetings.............................................58
Section 1404. Quorum; Action...................................................................58
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings..............58
Section 1406. Counting Votes and Recording Action of Meetings..................................59
Exhibit A ................................................................................A-1
(viii)
INDENTURE dated as of ______________, 2002 among Nortel Networks Limited (the
"Corporation" or the "Issuer"), a Canadian corporation having its principal
place of business at 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx, Xxxxxx X0X
0X0, Nortel Networks Corporation, a Canadian corporation having its principal
place of business at 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx, Xxxxxx X0X
0X0, as guarantor of Debt Securities issued by the Issuer (the "Guarantor"), and
Deutsche Bank Trust Company Americas, a banking corporation duly organized under
the laws of New York (the "Trustee"), having its Corporate Trust Office at 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust & Agency
Services.
For and in consideration of the premises and the purchase of the Debt Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Debt Securities or of a series
thereof, as follows.
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(A) the terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(B) all other terms used herein that are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein;
(C) all accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with United States generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such United States accounting
principles as are generally accepted at the date of such computation; and
(D) 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.
(1) "Act" when used with respect to any Holder has the meaning specified in
Section 104.
(2) "Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
(3) "Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or
not published on Saturdays, Sundays or holidays, and of general circulation in
the place in connection with which the term is used or in the financial
community of such place. Where successive publications are required to be made
in Authorized Newspapers, the successive publications may be made in the same or
in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
(4) "Authorized Officers" means, with respect to the Issuer or the Guarantor, as
the case may be, any two of the President and Chief Executive Officer, the Chief
Legal Officer, the Chief Financial Officer or any one of the aforesaid officers
together with any one of the Corporate Secretary, the Controller, the Treasurer,
any Assistant Secretary, any Assistant Controller or any Assistant Treasurer;
provided, however, that the Issuer or the Guarantor may, from time to time,
designate additional officers who would qualify as its "Authorized Officers"
pursuant to an Officers' Certificate delivered to the Trustee.
(5) "Board of Directors" means, in respect of the Issuer or the Guarantor, the
board of directors, the executive committee or any other committee of that board
or any group of directors of that board, duly authorized to make a decision on
the matter in question.
(6) "Board Resolution" means a copy of a resolution certified by the Corporate
Secretary or an Assistant Secretary of the Issuer or the Guarantor, as the case
may be, to have been duly adopted by the Board of Directors of the Issuer or the
Guarantor, respectively, and to be in full force and effect on the date of such
certification.
(7) "Business Day", when used with respect to any Place of Payment, means any
Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
(8) "Commission" means the United States Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
(9) "Components", with respect to a composite currency, means the currency
amounts that are components of such composite currency on the Conversion Date.
If after such Conversion Date the official unit of any component currency is
altered by way of combination or subdivision, the number of units of such
currency shall be divided or multiplied in the same proportion to calculate the
Component. If after such Conversion Date two or more component currencies are
consolidated into a single currency, the amounts of those currencies as
Components shall be replaced by an amount in such single currency equal to the
sum of the amounts of such consolidated component currencies expressed in such
single currency, and such amount shall thereafter be a Component. If after such
Conversion Date any component currency shall be divided into two or more
currencies, the amount of such currency as a Component shall be replaced by
amounts of such two or more currencies, each of which shall be equal to the
amount of such former component currency divided by the number of currencies
into which such component currency was divided, and such amounts shall
thereafter be Components.
(10) "Conversion Date", with respect to a composite currency, has the meaning
specified in Section 311(f).
2
(11) "Corporate Trust Office" means, with respect to the Trustee, the Security
Registrar and any Paying Agent, the principal corporate trust office at which at
any particular time such respective entity's corporate trust business shall be
administered, which office at the date of the execution of the Indenture is
located, in the case of the Trustee, at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: Corporate Trust & Agency Services, or at any other time at
such other address as the Trustee, the Security Registrar or any Paying Agent
may designate from time to time by notice to the Holders.
(12) "corporation" includes corporations, associations, companies and business
trusts.
(13) "Corporation" means the Person named as the "Corporation" in the first
paragraph of this Indenture until a successor corporation to such Person shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Corporation" shall mean such successor corporation.
(14) "Debt Securities" means Debt Securities issued by the Issuer, guaranteed by
the Guarantor and authenticated and delivered under this Indenture.
(15) "Defaulted Interest" has the meaning specified in Section 307.
(16) "Depositary" means, with respect to the Debt Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Issuer pursuant to
Section 301 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
Debt Securities of any such series shall mean the Depositary with respect to the
Debt Securities of that series.
(17) "Dollar" or "$" means the currency of the United States of America which as
at the time of payment is legal tender for the payment of public and private
debts.
(18) "Event of Default" has the meaning specified in Section 501.
(19) "Exchange Act" means the United States Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(20) "Exchange Rate" means: (i) with respect to a currency (other than a
composite currency) in which payment is to be made on Debt Securities
denominated in a composite currency, the exchange rate between such composite
currency and such currency reported by the agency or organization, if any,
designated pursuant to Section 301(b)(5), or if such exchange rate is not or
ceases to be so reported, then such exchange rate as shall be determined by the
Trustee or, if the Trustee is not also acting as the Paying Agent, any Paying
Agent using quotations from one or more major banks in the City of New York or
such other quotations as the Trustee or any Paying Agent, as the case may be,
shall deem appropriate, such banks being satisfactory to the Issuer, on the
Regular or Special Record Date with respect to such Interest Payment Date or
date for payment of Defaulted Interest or the fifteenth day immediately
preceding the maturity of an installment of principal, as the case may be; (ii)
with respect to payments in Dollars to be made on Debt Securities denominated in
a Foreign Currency, the noon buying rate for that currency for
3
wire transfers quoted in the City of New York on the Regular or Special Record
Date with respect to such Interest Payment Date or date for payment of Defaulted
Interest or the fifteenth day immediately preceding the maturity of an
installment of principal, as the case may be, as certified for customs purposes
by the Federal Reserve Bank of New York; (iii) with respect to payments in a
Foreign Currency to be made on Debt Securities denominated in Dollars or
converted into Dollars pursuant to Section 311(f), the noon Dollar buying rate
for that currency for wire transfers quoted in the City of New York on the
Regular or Special Record Date with respect to such Interest Payment Date or
date for payment of Defaulted Interest or the fifteenth day immediately
preceding the maturity of an installment of principal, as the case may be, as
certified for customs purposes by the Federal Reserve Bank of New York; and (iv)
with respect to payments in a Foreign Currency to be made on Debt Securities
denominated in a different Foreign Currency, the exchange rate between such
Foreign Currencies determined in the manner specified pursuant to Section
301(b)(18). Except in the situation contemplated in (i) above, if for any reason
such rates are not available with respect to one or more currencies for which an
Exchange Rate is required, the Trustee or any Paying Agent, as the case may be,
shall use such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in the City of
New York or in the country of issue of the currency in question, or such other
quotations as the Trustee or any Paying Agent, as the case may be, shall deem
appropriate, such banks being satisfactory to the Issuer. Unless otherwise
specified by the Trustee or by any Paying Agent, as the case may be, if there is
more than one market for dealing in any currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency
shall be that upon which a non-resident issuer of securities designated in such
currency would purchase such currency in order to make payments in respect of
such securities.
(21) "Exchange Rate Officers' Certificate", with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of Debt
Securities, means a certificate setting forth the applicable Exchange Rate or
Rates as of the Regular or Special Record Date with respect to such Interest
Payment Date, the date for payment of Defaulted Interest or the fifteenth day
immediately preceding the maturity of an installment of principal, as the case
may be, and the amounts payable in Dollars and Foreign Currencies in respect of
the principal of (and premium, if any) and interest on Debt Securities
denominated in any composite currency or any Foreign Currency, and signed by the
Authorized Officers of the Issuer and delivered to the Trustee or to any Paying
Agent, as the case may be.
(22) "Foreign Currency" means a currency issued by the government of any country
other than the United States of America.
(23) "Global Security" means a Debt Security evidencing all or part of a series
of Debt Securities, issued to the Depositary for such series in accordance with
Section 303 and bearing the legend prescribed in Section 303(c).
(24) "Guarantee" means the guarantee of the Guarantor as endorsed on each
Guaranteed Debt Security authenticated and delivered pursuant to this Indenture
and shall include the guarantee of the Guarantor set forth in Section 203 of
this Indenture and shall include all other obligations and covenants of the
Guarantor contained in this Indenture and any Guaranteed Debt Securities.
4
(25) "Guarantor" means the Person named as "Guarantor" in the first paragraph of
this Indenture until a successor corporation to such Guarantor shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor corporation.
(26) "Guarantor Order" and "Guarantor Request" mean, respectively, a written
order or request signed in the name of the Guarantor by its Authorized Officers.
(27) "Holder", with respect to a Debt Security, means the Person in whose name
such Debt Security is registered in the Security Register.
(28) "Indenture" means this instrument as originally executed or as it may from
time to time be supplemented, amended or restated by or pursuant to one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as contemplated by
Section 301.
(29) "interest", when used with respect to an Original Issue Discount Security
that by its terms bears stated interest only after Maturity, refers to interest
payable after Maturity.
(30) "Interest Payment Date", with respect to any Debt Security, means the
Stated Maturity Date of an installment of interest on such Debt Security.
(31) "Issuer" has the meaning assigned to it in the first paragraph of this
Indenture until a successor corporation to the Issuer shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter,
"Issuer" shall mean with respect to the Issuer, the successor corporation to the
Issuer.
(32) "Issuer Order" and "Issuer Request" mean, respectively, a written order or
request signed in the name of the Issuer by its Authorized Officers.
(33) "Maturity", when used with respect to any Debt Security, means the date on
which the principal of such Debt Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity Date or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
(34) "Officers' Certificate" means a certificate signed by the Authorized
Officers of the Issuer or the Guarantor, as the case may be, and delivered to
the Trustee.
(35) "Opinion of Counsel" means a written opinion of counsel, who may be counsel
to the Issuer or the Guarantor or both, as the case may be, which opinion shall
be subject to assumptions and qualifications satisfactory to such counsel.
(36) "Original Issue Discount Security" means any Debt Security that is issued
with "original issue discount" within the meaning of Section 1273(a) of the
United States Internal Revenue Code of 1986 and the regulations thereunder and
any other Debt Security designated by the Issuer as issued with original issue
discount for United States federal income tax purposes.
5
(37) "Outstanding" when used with respect to Debt Securities means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Issuer) in trust
or set aside and segregated in trust by the Issuer (if the
Issuer shall act as its own Paying Agent) for the Holders of
such Debt Securities; provided, however, that if such Debt
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Debt Securities that have been surrendered to the Trustee
pursuant to Section 306 or in exchange for or in lieu of which
other Debt Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Debt
Securities in respect of which there shall have been presented
to the Trustee proof that such Debt Securities are held by a
bona fide purchaser in whose hands such Debt Securities are
valid and binding obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have taken any Act hereunder,
Debt Securities owned by the Issuer or any other obligor upon the Debt
Securities or any Affiliate of the Issuer or of such other obligor shall be
disregarded and deemed not to be Outstanding; provided further that, in
determining whether the Trustee shall be protected in relying upon such Act,
only Debt Securities that a Responsible Officer of the Trustee knows to be so
owned shall be so disregarded; and provided further that Debt Securities so
owned that 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 to
act with respect to such Debt Securities and that the pledgee is not the Issuer
or any other obligor upon the Debt Securities or any Affiliate of the Issuer or
of such other obligor.
(38) "Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Issuer.
(39) "Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
(40) "Place of Payment" means: (i) when used with respect to the Debt Securities
of any series payable in Dollars, the Corporate Trust Office of the Trustee or
the Paying Agent, as the case may be, in the Borough of Manhattan, the City and
State of New York; and, (ii) when used with respect to the Debt Securities of
any series payable in a Foreign Currency, the other place or places, if any,
where the principal of (and premium, if any) and interest on the Debt Securities
of that series are payable as specified as contemplated by Section 301.
6
(41) "Predecessor Security" of any particular Debt Security means every previous
Debt Security evidencing all or a portion of the same debt as that evidenced by
such particular Debt Security; and, for the purposes of this definition, any
Debt Security authenticated and delivered under Section 306 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to evidence the same debt as
the lost, destroyed or stolen Debt Security.
(42) "Redemption Date", when used with respect to any Debt Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
(43) "Redemption Price", when used with respect to any Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
(44) "Regular Record Date" for the interest payable on any Interest Payment Date
on the Debt Securities of any series means the date specified for that purpose
as contemplated by Section 301.
(45) "Responsible Officer" when used with respect to the Trustee means any
officer within the Corporate Trust Office, including any vice-president (whether
or not designated by a number or word or words added before or after the title
"vice-president"), any assistant vice-president, any managing director, any
director, any associate or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
(46) "Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
(47) "Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
(48) "Stated Maturity Date", when used with respect to any Debt Security or any
installment of interest thereon, means the date specified in such Debt Security
as the fixed date on which the principal of such Debt Security or such
installment of interest is due and payable.
(49) "Subsidiary" means, with respect to the Issuer or the Guarantor, as the
case may be, a corporation, a majority of the outstanding voting shares of which
are owned, directly or indirectly, by the Issuer or the Guarantor or by one or
more other Subsidiaries of the Issuer or the Guarantor, or by the Issuer or the
Guarantor and one or more other Subsidiaries of the Issuer or the Guarantor. For
the purposes of this definition, "voting shares" means shares having voting
power for the election of directors, whether at all times or only so long as no
other shares have such voting power by reason of any contingency.
(50) "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this Indenture was executed, except as provided in Sections
609, 703 and 905 hereof.
(51) "Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions hereof, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Debt Securities of
any series shall mean the Trustee
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with respect to Debt Securities of that series.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or request by the Issuer or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the Issuer or
the Guarantor, as the case may be, shall furnish to the Trustee an Officers'
Certificate and Opinion of Counsel stating that all conditions precedent, if
any, provided for in this Indenture related to the proposed action have been
complied with except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture related to such particular application or request, no
additional certificate or opinion need be furnished.
(b) Every Officers' Certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture (other than the
certificate required by Section 1004) shall include: (1) a statement that each
individual signing such certificate or opinion has read such covenant or
condition and the definitions herein related thereto; (2) a brief statement as
to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based; (3) a
statement that, in the opinion of each such individual, he has made such
examination or investigation as is reasonably necessary to enable him to make
the statement or to express an opinion whether such covenant or condition has
been complied with; and (4) a statement whether, in the opinion of each such
individual, such condition or covenant has been complied with.
(c) Any Officers' Certificate may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, unless such Authorized Officer knows that
the opinion with respect to the matters upon which his or her certificate may be
based as aforesaid is erroneous. Any Opinion of Counsel may be based, insofar as
it relates to factual matters, upon certificates, statements or opinions of, or
representations by an officer or officers of the Issuer, or other persons or
firms deemed appropriate by such counsel, unless such counsel knows that the
certificates, statements or opinions or representations with respect to the
matters upon which his or her opinion may be based as aforesaid are erroneous.
(d) Any Officers' Certificate, statement or Opinion of Counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or
representation by an accountant (who may be an employee of the Issuer), or firm
of accountants, unless such Authorized Officer or counsel, as the case may be,
knows that the certificate or opinion or representation with respect to the
accounting matters upon which his or her certificate, statement or opinion may
be based as aforesaid is erroneous.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters
8
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
(b) Any Officers' Certificate or Opinion of Counsel of the Issuer or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which such
certificate or opinion is based is erroneous. Any such certificate or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Issuer or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of such certifying entity
unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters
is erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Issuer or the Guarantor or any of
them. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and, subject to Section 601, conclusive in favor of
the Trustee, the Issuer and the Guarantor, if made in the manner provided in
this Section. The record of any meeting of Holders of Debt Securities shall be
proved in the manner provided in Section 1406.
(b) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
manner that the Trustee deems sufficient.
(c) The ownership of Debt Securities shall be proved by the Security Register.
(d) If the Issuer or the Guarantor shall solicit from the Holders of Debt
Securities of any series any Act, the Issuer or the Guarantor, as the case may
be, may, at its option, by Board Resolution, fix in advance a record date for
the determination of Holders of Debt Securities entitled to take such Act, but
the Issuer or the Guarantor, as the case may be, shall have no
9
obligation to do so. Any such record date shall be fixed at the discretion of
the Issuer or the Guarantor, as the case may be. If such a record date is fixed,
such Act may be sought or taken before or after the record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purpose of determining whether Holders of the requisite
proportion of Debt Securities of such series Outstanding have authorized or
agreed or consented to such Act, and for that purpose the Debt Securities of
such series Outstanding shall be computed as of such record date.
(e) Any Act of the Holder of any Debt Security shall bind every future holder of
the same Debt Security and the Holder of every Debt Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, suffered or omitted by the Trustee, the Issuer or the
Guarantor in reliance thereon, whether or not notation of such action is made
upon such Debt Security.
(f) For purposes of determining the principal amount of Outstanding Debt
Securities of any series the Holders of which are required, requested or
permitted to take any Act under this Indenture: (1) each Original Issue Discount
Security shall be deemed to have an amount outstanding determined by the Trustee
that could be declared to be due and payable pursuant to the terms of such
Original Issue Discount Security as of the date such Act is delivered to the
Trustee and, where it is hereby expressly required, to the Issuer or the
Guarantor; and (2) each Debt Security denominated in a Foreign Currency or
composite currency shall be deemed to have an amount outstanding determined by
the Trustee by converting the principal amount of such Debt Security in the
currency in which such Debt Security is denominated into Dollars at the Exchange
Rate as of the date such Act is delivered to the Trustee and, where it is hereby
expressly required, to the Issuer or the Guarantor (or, if there is no such rate
on such date for the reasons specified in Section 311(d), such rate on the date
specified in such Section).
SECTION 105. NOTICES, ETC., TO TRUSTEE, ISSUER AND GUARANTOR.
Any Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(1) the Trustee, by any Holder or by the Issuer or the Guarantor,
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at
its Corporate Trust Office, Attention: Corporate Trust &
Agency Services, facsimile 000-000-0000, or such other
facsimile number as may be provided by the Trustee from time
to time, and shall be deemed to have been made at the time of
delivery or facsimile transmission; provided that any delivery
made or facsimile sent on a day other than a Business Day in
New York shall be deemed to be received on the next following
Business Day in New York; or
(2) the Issuer or the Guarantor, by the Trustee or by any Holder,
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing to the
Issuer or the Guarantor, as the case may be, addressed to it
at the address of its executive office specified in the first
paragraph of this Indenture, Attention: Corporate Secretary,
facsimile number (000) 000-0000, or such other facsimile
number as may be provided by the Issuer or the Guarantor to
the Trustee from time to time, and shall be deemed to have
been made at the time of delivery
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or facsimile transmission; provided that any delivery made or
facsimile sent on a day other than a Business Day in Toronto,
Ontario shall be deemed to be received on the next following
Business Day in Xxxxxxx, Xxxxxxx.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
(a) Except as otherwise expressly provided herein, where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given to
Holders if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
(b) If the regular mail service is suspended or for any other reason it shall be
impracticable to give notice to Holders by mail, then such notification to
Holders as shall be made with the approval of the Trustee shall constitute
sufficient notification for every purpose hereunder. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.
(c) 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.
(d) Any Act required or permitted under this Indenture shall be in the English
language.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Issuer or the Guarantor
shall bind its successors and assigns, whether expressed or not. All agreements
of the Trustee in this Indenture shall bind its respective successors.
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SECTION 110. SEPARABILITY CLAUSE.
If any provision in this Indenture or in the Debt Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debt Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, and any Paying Agent and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW, ETC.
(a) This Indenture and the Debt Securities shall be governed by and construed in
accordance with the laws of the State of New York, but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the law of another jurisdiction would be required thereby.
(b) Each of the Issuer and the Guarantor has appointed CT Corporation System
with offices at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000 as its
authorized agent (the "Authorized Agent") upon whom all writs, process and
summonses may be served in any suit, action or proceeding arising out of or
based upon this Indenture or the Debt Securities which may be instituted in any
state or federal court in the City of New York, New York. The Issuer and the
Guarantor hereby represent and warrant that the Authorized Agent has accepted
such appointment and has agreed to act as said agent for service of process, and
the Issuer and the Guarantor agree to take any and all action, including the
filing of any and all documents, that may be reasonably necessary to continue
each such appointment in full force and effect as aforesaid so long as the Debt
Securities remain outstanding. The Issuer and the Guarantor agree that the
appointment of the Authorized Agent shall be irrevocable so long as any of the
Debt Securities remain outstanding or until the irrevocable appointment by the
Issuer and the Guarantor of a successor agent in the City of New York, New York
as each of their authorized agent for such purpose and the acceptance of such
appointment by such successor. Service of process upon the Authorized Agent
shall be deemed, in every respect, effective service of process upon the Issuer
or the Guarantor, as the case may be.
(c) Each of the Issuer and the Guarantor hereby:
(1) agrees that any suit, action or proceeding against it arising
out of or relating to this Indenture or the Debt Securities,
as the case may be, may be instituted in any federal or state
court sitting in the City of New York;
(2) waives to the extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding, and any claim
that any suit, action or proceeding in such a court has been
brought in an inconvenient forum;
12
(3) irrevocably submits to the non-exclusive jurisdiction of such
courts in any suit, action or proceeding; and
(4) agrees that service of process by mail to the addresses
specified herein shall constitute personal service of such
process on it in any such suit, action or proceeding.
SECTION 113. LEGAL HOLIDAYS.
If any Interest Payment Date, Redemption Date or Stated Maturity Date of any
Debt Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Debt
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date, or Stated Maturity
Date, and no interest shall accrue on such payment for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity Date, as the case
may be.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. FORMS GENERALLY.
(a) All Debt Securities, the Guarantee and the Trustee's certificate of
authentication shall have such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture or by a
Board Resolution and as set forth in an Officers' Certificate or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon as
the Issuer or the Guarantor, as the case may be, may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any securities exchange on which any of the Debt
Securities may be listed, or to conform to usage.
(b) The definitive Debt Securities and the Guarantee shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner; provided, that
such manner is permitted by the rules of any securities exchange on which the
Debt Securities may be listed or of any automated quotation system on which such
series may be quoted, all as determined by the officers executing such Debt
Securities, as conclusively evidenced by their execution of such Debt
Securities.
SECTION 202. FORMS OF DEBT SECURITIES.
Debt Securities shall be in the forms approved by the officers executing such
Debt Securities, as conclusively evidenced by their execution of such Debt
Securities, having those terms approved by or pursuant to a Board Resolution and
set forth in an Officers' Certificate or one or more
13
indentures supplemental hereto which shall set forth the information required by
Section 301. The Debt Securities of each series shall be issuable in registered
form without coupons and may be in the form of one or more Global Securities in
whole or in part.
SECTION 203. GUARANTEE BY GUARANTOR; FORM OF GUARANTEE.
The Guarantor by its execution of this Indenture hereby agrees with each Holder
of a Debt Security of each series authenticated and delivered by the Trustee and
with the Trustee on behalf of each such Holder, to be unconditionally bound by
the terms and provisions of the Guarantee set forth below and authorizes the
Trustee to confirm such Guarantee to the Holder of each such Debt Security by
its execution and delivery of each such Debt Security, with such Guarantee
endorsed thereon, authenticated and delivered by the Trustee.
The Guarantee to be endorsed on the Debt Securities shall, subject to Section
201, be in substantially the form set forth below:
GUARANTEE
OF
NORTEL NETWORKS CORPORATION
For value received, Nortel Networks Corporation, a corporation incorporated
under the laws of Canada, having its principal executive offices at 0000 Xxxxx
Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0 (herein called the
"Guarantor", which term includes any Person as a successor Guarantor under the
Indenture referred to in the Debt Security upon which this Guarantee is
endorsed), hereby fully and unconditionally guarantees to the Holder of the Debt
Security upon which this Guarantee is endorsed and to the Trustee on behalf of
each such Holder the due and punctual payment of the principal of, premium, if
any, and interest on such Debt Security and the due and punctual payment of the
sinking fund or analogous payments referred to therein, if any, when and as the
same shall become due and payable, whether on the Stated Maturity Date, by
declaration of acceleration, call for redemption or otherwise, according to the
terms thereof and of the Indenture referred to therein. In case of the failure
of Nortel Networks Limited, a corporation organized under the laws of Canada
(herein called the "Borrower", which term includes any successor Person under
such Indenture), to punctually make any such payment of principal, premium, if
any, or interest or any such sinking fund or analogous payment, the Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether on the Stated Maturity Date or by
declaration of acceleration, call for redemption or otherwise, and as if such
payment were made by the Borrower.
The Guarantor hereby agrees that its obligations hereunder shall be as if it
were the principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Debt Security or such Indenture, any
failure to enforce the provisions of such Debt Security or such Indenture, or
any waiver, modification or indulgence granted to the Borrower with respect
thereto, by the Holder of such Debt Security or the Trustee or any other
circumstance which may otherwise constitute a legal or equitable discharge of a
surety or guarantor; provided, however, that, notwithstanding
14
the foregoing, no such waiver, modification or indulgence shall, without the
consent of the Guarantor, increase the principal amount of such Debt Security,
or increase the interest rate thereon, or increase any premium payable upon
redemption thereof, or alter the Stated Maturity Date thereof, or increase the
principal amount of any Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Article Five of such Indenture. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Borrower, any right to require a proceeding first
against the Borrower, protest or notice with respect to such Debt Security or
the indebtedness evidenced thereby or with respect to any sinking fund or
analogous payment required under such Debt Security and all demands whatsoever,
and covenants that this Guarantee will not be discharged except by payment in
full of the principal of, premium, if any, and interest on such Debt Security.
The Guarantor shall be subrogated to all rights of the Holder of such Debt
Security and the Trustee against the Borrower in respect of any amounts paid to
such Holder by the Guarantor pursuant to the provisions of this Guarantee;
provided, however, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon such right of subrogation
until the principal of, premium, if any, and interest on all Debt Securities of
the same series issued under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this Guarantee or of
such Indenture shall alter or impair the guarantees of the Guarantor, which are
absolute and unconditional, of the due and punctual payment of the principal of,
premium, if any, and interest on, and any sinking fund or analogous payments
with respect to, the Debt Security upon which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication of such Debt Security shall have been manually
executed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall have
the meanings assigned to them in such Indenture.
This Guarantee shall be governed by and construed in accordance with the laws of
the State of New York.
15
Executed and dated the date on the face hereof.
NORTEL NETWORKS CORPORATION
By
------------------------------------------------
Name:
Title:
By
------------------------------------------------
Name:
Title:
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's certificate of authentication to be borne by the Debt
Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities issued under the within-mentioned Indenture.
Deutsche Bank Trust Company Americas,
as Trustee
By:
-----------------------------------
Authorized Signatory
Dated:
---------------------------------
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
(a) The aggregate principal amount of Debt Securities that may be authenticated
and delivered under this Indenture is unlimited.
(b) The Debt Securities may be issued in one or more series. Not all Debt
Securities of any one series need be issued at the same time, and, unless
otherwise provided, a series may be reopened for issuances of additional Debt
Securities of such series. There shall be established in or pursuant to a Board
Resolution of the Issuer and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Debt Securities of any series:
16
(1) the designation of the Debt Securities of the series (which
shall distinguish the Debt Securities of the series from all
other Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series that may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Debt Securities of
the series pursuant to Sections 304, 305, 306, 906 or 1107);
(3) the denominations in which Debt Securities of the series shall
be issuable;
(4) the date or dates on which the principal of the Debt
Securities of the series is payable;
(5) the currency or currencies of denominations of the Debt
Securities of any series, which may be in Dollars, any Foreign
Currency or any composite currency, and, if any such currency
of denomination is a composite currency, the agency or
organization, if any, responsible for overseeing such
composite currency;
(6) the currency or currencies in which payment of the principal
of (and premium, if any) and interest on the Debt Securities
of the series will be made, and the currency or currencies, if
any, in which payment of the principal of (and premium, if
any) or the interest on Debt Securities of the series, at the
election of each of the Holders thereof, may also be payable;
(7) the rate or rates or the method of determination thereof at
which the Debt Securities of the series shall bear interest,
if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest
shall be payable, and the Regular Record Dates for the
interest payable on such Interest Payment Dates;
(8) the period or periods within which or the date or dates on
which, if any, the price or prices at which and the terms and
conditions upon which Debt Securities of the series may be
repurchased or redeemed, in whole or in part, at the option of
the Issuer;
(9) the obligation, if any, of the Issuer to redeem, repay or
purchase Debt Securities of the series either pursuant to any
sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon
which Debt Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such
obligation;
(10) the terms and conditions, if any, upon which additional
interest or amounts may be payable with respect to the Debt
Securities;
(11) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities
and, in such case, the Depositary for such
17
Global Security or Securities and the terms and conditions, if
any, upon which interests in such Global Security or
Securities may be exchanged in whole or in part for the
individual Debt Securities represented thereby;
(12) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more temporary debt
certificates pursuant to Section 304 hereof, and, in such
case, provisions relating to the payment of interest thereon
and the terms and conditions, if any, upon which interests in
such temporary Debt Securities may be exchanged in whole or in
part for the individual Debt Securities represented thereby;
(13) any addition to or change in the covenants set forth in
Article Ten which applies to Debt Securities of the series;
(14) any addition to or change in the Events of Default set forth
in Section 501 which applies to Debt Securities of the series;
(15) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series that shall
be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 501;
(16) if the amount of payments of principal of (and premium, if
any) or interest on the Debt Securities of the series may be
determined with reference to an index based on a currency or
currencies other than that in which the Debt Securities of the
series are denominated or designated to be payable, the manner
in which such amounts shall be determined;
(17) if the payments of principal of (and premium, if any) or the
interest on the Debt Securities of the series are to be made
in a Foreign Currency, other than the Foreign Currency in
which such Debt Securities are denominated, the manner in
which the Exchange Rate with respect to such payments shall be
determined;
(18) the terms, if any, upon which the Debt Securities of the
series will be defeasable;
(19) the place or places where the principal of (and premium, if
any) and interest on Debt Securities of the series shall be
payable;
(20) any provision for the conversion or exchange of Debt
Securities of the series, either at the option of the Holders
thereof or the Issuer, into or for another security or
securities of the Issuer or another Person, the security or
securities into or for which, the period or periods within
which, the price or prices, including any adjustments thereto,
at which and the other terms and conditions upon which any
Debt Securities of the series shall be converted or exchanged,
in whole or in part, pursuant to such obligation;
(21) the securities exchange or quotation system upon which Debt
Securities of the series will be listed or quoted, if any;
(22) CUSIP numbers, if any; and
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(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
(c) All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in such
indenture or indentures supplemental hereto.
(d) If any of the terms of a series of Debt Securities are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Corporate Secretary or an Assistant Secretary
of the Issuer and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
(e) Debt Securities of any series which are repayable at the option of the
Holders shall be repaid in accordance with the terms of the Debt Securities of
such series.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect to any
series of Debt Securities and except as provided in Section 303, Debt Securities
will be issued in denominations, unless otherwise specified by the Issuer, of
integral multiples of $1,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Debt Securities and the Guarantee shall be executed on behalf of the
Issuer and the Guarantor by their respective Authorized Officers. The Debt
Securities may but need not be under the corporate seal of the Issuer or the
Guarantor, as the case may be, or a reproduction thereof (which reproduction
shall for such purposes be deemed to be the corporate seal of the Issuer or the
Guarantor, as the case may be). The signature of any of these officers on the
Debt Securities may be manual or facsimile. Debt Securities and the Guarantee
endorsed thereon bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Issuer or the Guarantor, as the case
may be, shall bind the Issuer or the Guarantor, as the case may be,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debt Securities or
Guarantee.
(b) At any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Debt Securities of any series executed by the
Issuer, with the Guarantee of the Guarantor endorsed thereon, to the Trustee for
authentication, together with the Issuer Order for the authentication and
delivery of such Debt Securities; whereupon the Trustee, in accordance with such
Issuer Order, shall authenticate and deliver such Debt Securities. The Trustee
shall be entitled to receive, prior to the authentication and delivery of such
Debt Securities, the supplemental indenture or the Board Resolution by or
pursuant to which the terms of such Debt Securities have been approved, an
Officers' Certificate as to the absence of any event that is, or after notice or
lapse of time or both would become, an Event of Default, and an Opinion or
Opinions of Counsel of the Issuer and the Guarantor to the effect that:
(1) all instruments furnished by the Issuer and the Guarantor to
the Trustee in connection with the authentication and delivery
of such Debt Securities conform
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to the requirements of this Indenture and constitute
sufficient authority hereunder for the Trustee to authenticate
and deliver such Debt Securities;
(2) the forms of such Debt Securities and the Guarantee have been
established in conformity with the provisions of this
Indenture;
(3) the terms of such Debt Securities and the Guarantee have been
established in conformity with the provisions of this
Indenture;
(4) in the event that the forms or terms of such Debt Securities
and the Guarantee have been established in a supplemental
indenture, the execution and delivery of such supplemental
indenture have been duly authorized by all necessary corporate
action of the Issuer and the Guarantor, such supplemental
indenture has been duly executed and delivered by the Issuer
and the Guarantor and, assuming due authorization, execution
and delivery by the Trustee, is a valid and binding obligation
enforceable against the Issuer and the Guarantor in accordance
with its terms, subject to enforceability being limited by
bankruptcy, insolvency, or other laws or foreign governmental
actions affecting the enforcement of creditors' rights
generally, and equitable remedies, including the remedies of
specific performance and injunction, being granted only in the
discretion of a court of competent jurisdiction;
(5) the execution and delivery of such Debt Securities and the
Guarantee have been duly authorized by all necessary corporate
action of the Issuer and the Guarantor and such Debt
Securities and the Guarantee have been duly executed by the
Issuer and the Guarantor and, assuming due authentication by
the Trustee and delivery by the Issuer and the Guarantor, are
valid and binding obligations of the Issuer and the Guarantor
enforceable against the Issuer and the Guarantor in accordance
with their terms, entitled to the benefit of the Indenture,
subject to enforceability being limited by bankruptcy,
insolvency, or other laws or foreign governmental actions
affecting the enforcement of creditors' rights generally, and
equitable remedies, including the remedies of specific
performance and injunction, being granted only in the
discretion of a court of competent jurisdiction;
(6) the amount of Outstanding Debt Securities of such series,
together with the amount of such Debt Securities, does not
exceed any limit established under the terms of this Indenture
on the amount of Debt Securities of such series that may be
authenticated and delivered; and
(7) such other matters as the Trustee may reasonably request.
(c) If the Issuer shall establish pursuant to Section 301 that the Debt
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Issuer and the Guarantor shall execute and
the Trustee shall authenticate and deliver one or more Global Securities that
shall: (1) represent an aggregate amount equal to the aggregate principal amount
of the Outstanding Debt Securities of such series to be represented by one or
more Global Securities; (2) be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary; (3) be held or
be delivered by the Trustee to such Depositary
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or pursuant to such Depositary's instruction; and (4) bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for the individual Debt Securities represented hereby, this
Global Security may not be transferred except as a whole by the Depositary to a
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."
(d) Each Depositary designated pursuant to Section 301 for a Global Security
must, at the time of its designation and at all times while it serves as such
Depositary, be a clearing agency registered under the Exchange Act and any other
applicable statute or regulation.
(e) The Trustee shall not be required to authenticate any Debt Securities if the
issuance of such Debt Securities pursuant to this Indenture will adversely
affect the Trustee's own rights, duties or immunities under this Indenture.
(f) Each Debt Security shall be dated the date of its issue, except as otherwise
provided pursuant to Section 301 with respect to Debt Securities of such series.
(g) No Debt Security or Guarantee endorsed thereon shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of one of its authorized officers, and such certificate upon
any Debt Security shall be conclusive evidence, and the only evidence, that such
Debt Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
SECTION 304. TEMPORARY DEBT SECURITIES.
(a) Pending the preparation of definitive Debt Securities of any series, the
Issuer may execute, and, upon receipt of an Issuer Order, the Trustee shall
authenticate and deliver, temporary Debt Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Debt Securities in
lieu of which they are issued, in registered form, having endorsed thereon a
Guarantee executed by the Guarantor substantially of the tenor of the definitive
Guarantee, and in all cases with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Issuer and the
Guarantor executing such Debt Securities and the Guarantee may determine, as
conclusively evidenced by their execution of such Debt Securities. Any such
temporary Debt Securities may be in global form, representing all or a portion
of the Outstanding Debt Securities of such series. Every such temporary Debt
Security and Guarantee shall be executed by Authorized Officers of the Issuer
and the Guarantor and shall be authenticated and delivered by the Trustee upon
the same terms and conditions and in substantially the same manner, and with the
same effect, as the definitive Debt Securities and Guarantee in lieu of which it
is issued.
(b) If temporary Debt Securities of any series are issued, the Issuer will cause
definitive Debt Securities of such series to be prepared without unreasonable
delay. Upon surrender for cancellation of any one or more temporary Debt
Securities of any series, the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
21
definitive Debt Securities of the same series of authorized denominations and of
like tenor and having endorsed thereon a Guarantee executed by the Guarantor.
Until so exchanged, temporary Debt Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as individual
Debt Securities of such series, except as otherwise specified as contemplated by
Section 301 with respect to the payment of interest on Global Securities in
temporary form.
(c) Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Debt Securities represented
thereby pursuant to this Section 304 or Section 305, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Issuer will maintain an office or agency at which shall be kept a
register (the "Security Register") which, subject to such reasonable regulations
as it may prescribe, shall provide for the registration of Debt Securities and
of transfers of Debt Securities. Unless and until otherwise determined by the
Issuer, the Trustee shall act as the Issuer's agent as Security Registrar and
the Security Register shall be kept at the office or agency of the Trustee in
the Borough of Manhattan, the City of New York. Such Security Register shall be
in written form or in any other form capable of being converted into written
form within a reasonable period of time. At all reasonable times, the Security
Register shall be open for inspection by the Trustee.
(b) Upon surrender for registration of transfer of any Debt Security of any
series at the office or agency of the Issuer maintained for such purpose, the
Issuer shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Debt
Securities of the same series of any authorized denomination or denominations,
of like tenor and aggregate principal amount, and having endorsed thereon a
Guarantee executed by the Guarantor. Every Debt Security presented or
surrendered for registration of transfer or for exchange shall (if so required
by the Issuer, the Security Registrar or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Issuer, the Security Registrar and the Trustee duly executed, by the Holder
thereof or his attorney duly authorized in writing.
(c) Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Debt Securities in definitive form, a Global
Security representing all or a portion of the Debt Securities of a series may
not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
(d) At the option of the Holder, Debt Securities of any series (other than a
Global Security) may be exchanged for other Debt Securities of the same series
of any authorized denomination or denominations of a like aggregate principal
amount, upon surrender of the Debt Securities to be exchanged at such office or
agency.
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(e) If at any time the Depositary for the Debt Securities of a series notifies
the Issuer that it is unwilling or unable to continue as Depositary for the Debt
Securities of such series or if at any time the Depositary for the Debt
Securities of such series shall no longer be eligible under Section 303(d), the
Issuer shall appoint a successor Depositary with respect to the Debt Securities
of such series.
(f) The Issuer may at any time and in its sole discretion determine that
individual Debt Securities of any series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Global Securities. In such event the Issuer will execute, and the Trustee, upon
receipt of the Issuer Order for the authentication and delivery of individual
Debt Securities of such series, will authenticate and deliver, individual Debt
Securities of such series in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing Debt
Securities of such series which shall have endorsed thereon a Guarantee executed
by the Guarantor in exchange for such Global Security or Global Securities.
(g) If specified by the Issuer pursuant to Section 301 with respect to a series
of Debt Securities, the Depositary for such series of Debt Securities may
surrender a Global Security for such series of Debt Securities in exchange in
whole or in part for definitive Debt Securities of such series 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:
(1) to each Person specified by such Depositary a new definitive Debt Security
or Debt Securities of the same series which shall have endorsed thereon a
Guarantee executed by the Guarantor, of any authorized denomination as requested
by such Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and (2) to such Depositary
a new Global Security which shall have endorsed thereon a Guarantee executed by
the Guarantor in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of definitive Debt Securities delivered to Holders thereof.
(h) In any exchange provided for in Sections 305(f) or (g), the Issuer shall
execute and the Trustee will authenticate and deliver Debt Securities which
shall have endorsed thereon a Guarantee executed by the Guarantor in registered
form in authorized denominations.
(i) Upon the exchange of a Global Security for individual Debt Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Individual Debt Securities exchanged for portions of a Global Security pursuant
to this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Debt Securities to the
persons in whose names such Debt Securities are so registered.
(j) All Debt Securities executed for delivery upon any transfer or exchange of
Debt Securities shall be valid obligations of the Issuer evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered for such transfer or exchange. No service charge shall be
made for any registration of transfer or exchange of Debt Securities, but the
Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer,
registration of
23
transfer or exchange of Debt Securities, other than exchanges pursuant to
Sections 304, 906 or 1107 not involving any transfer.
(k) The Issuer shall not be required to: (1) execute for delivery, register the
transfer of or exchange of Debt Securities of any particular series during a
period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Debt Securities of such series selected for
redemption under Section 1103 and ending at the close of business on the day of
such mailing; or (2) register the transfer of or exchange of any Debt Security
so selected for redemption in whole or in part, except the unredeemed portion of
any Debt Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST OR STOLEN DEBT SECURITIES.
(a) If: (1) any mutilated Debt Security is surrendered to the Trustee; or (2)
the Issuer, the Guarantor and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Debt Security, and the Issuer, the
Guarantor and the Trustee receive such security or indemnity satisfactory to
them; then, in the absence of notice to the Issuer, the Guarantor or the Trustee
that such Debt Security has been acquired by a bona fide purchaser, the Issuer
and the Guarantor shall execute and upon their written request the Trustee shall
authenticate and deliver, in exchange for any such Security, a new Debt Security
of like tenor and principal amount, having endorsed thereon a Guarantee executed
by the Guarantor, in registered form bearing a number not contemporaneously
outstanding appertaining to such destroyed, lost or stolen Debt Security.
(b) If any such mutilated, destroyed, lost or stolen Debt Security has become or
is about to become due and payable, the Issuer or the Guarantor, in their
discretion may, instead of executing for delivery a new Debt Security (with the
Guarantee endorsed thereon), pay such Debt Security. Upon the execution for
delivery of any new Debt Security under this Section, the Issuer or the
Guarantor may require the payment by the Holder 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. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities.
(c) Every new Debt Security of any series (including the Guarantee endorsed
thereon) executed for delivery pursuant to this Section in lieu of any
destroyed, lost or stolen Debt Security shall constitute a contractual
obligation of the Issuer and the Guarantor to the same effect as such destroyed,
lost or stolen Debt Security (with the Guarantee endorsed thereon) and shall be
at any time enforceable by anyone, and any such new Debt Security and Guarantee
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities of that series and the
Guarantee endorsed thereon duly issued hereunder.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Interest on any Debt Security that is payable on any Interest Payment Date
shall be paid to the Person in whose name that Debt Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. At the option of the Issuer payment of interest
on any Debt Security may be made by cheque mailed to the
24
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer to an account designated by such Person.
(b) Any interest on any Debt Security of any series that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall be paid in accordance with the following
provisions and not to the registered Holder on the relevant Regular Record Date
by virtue of his having been such Holder.
(1) The Issuer may elect to make payment of any Defaulted Interest
to the Persons in whose names the Debt Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Issuer shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Debt Security of such series and
the date of the proposed payment, and at the same time the
Issuer shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest.
Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest, which shall be not more
than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment.
The Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Debt
Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Defaulted Interest shall be paid to the Persons
in whose names the Debt Securities of such series (or their
respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Issuer may make payment of any Defaulted Interest on the
Debt Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange
on which the Debt Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Issuer to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section, each Debt Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debt Security shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Debt
Security.
SECTION 308. PERSONS DEEMED OWNERS.
(a) Prior to due presentment of a Debt Security for registration of transfer,
the Issuer, the Guarantor, the Trustee and any agent of any of the foregoing may
treat the Person in whose name
25
such Debt Security is registered as the owner of such Debt Security for the
purpose of receiving payment of principal of (and premium, if any) and, subject
to Section 307, interest on such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security be overdue, and none of the
Issuer, the Guarantor, the Trustee or any agent of any of the foregoing shall be
affected by notice to the contrary.
(b) None of the Issuer, the Guarantor, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records related to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records related to such beneficial ownership interests.
SECTION 309. CANCELLATION.
Unless otherwise provided, all Debt Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Issuer or the Guarantor may deliver to the Trustee for
cancellation any Debt Securities previously authenticated and delivered
hereunder that the Issuer or the Guarantor may have acquired in any manner
whatsoever, and all Debt Securities so delivered shall be promptly cancelled by
the Trustee. No Debt Securities shall be authenticated in lieu of or in exchange
for any Debt Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Debt Securities held by the
Trustee shall be disposed of in accordance with the Trustee's policy of disposal
or shall be returned to the Issuer upon Issuer Request; provided, however, that
the Trustee shall not be required to destroy cancelled Debt Securities.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified pursuant to Section 301 for Debt Securities of any
series, interest on the Debt Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months. Solely for the purposes of
disclosure pursuant to the Interest Act (Canada) and without affecting the
calculation of interest on any Debt Securities, the yearly rate of interest for
any portion of an interest period of less than one year is the percent rate per
annum noted on any series of Debt Securities multiplied by the number of days in
the calendar year in which interest is paid divided by 360.
SECTION 311. PAYMENT IN CURRENCIES.
(a) Payment of principal of (and premium, if any) and interest on the Debt
Securities of any series shall be made in the currency or currencies specified
pursuant to Section 301; provided that the Holder of a Debt Security of such
series may elect to receive such payment in any one of Dollars or any other
currency designated for such purpose pursuant to Section 301. A Holder may make
such election by delivering to the Trustee or, if the Trustee is not also acting
as the Paying Agent, to any Paying Agent, a written notice thereof,
substantially in the form attached hereto as Exhibit A or in such other form as
may be acceptable to the Trustee or to any Paying Agent, as the case may be, not
later than the close of business on the Regular or Special Record Date
immediately preceding the applicable Interest Payment Date or date for payment
of Defaulted Interest or the fifteenth day immediately preceding the Maturity of
an installment of principal, as the case may be. Such election shall remain in
effect with respect to such Holder
26
until such Holder delivers to the Trustee or to any Paying Agent, as the case
may be, a written notice substantially in the form attached hereto as Exhibit A
or in such other form as may be acceptable to the Trustee or to any Paying
Agent, as the case may be, specifying a change in the currency in which such
payment is to be made; provided further that any such notice must be delivered
to the Trustee or to any Paying Agent, as the case may be, not later than the
close of business on the Regular or Special Record Date immediately preceding
the next Interest Payment Date or date for payment of Defaulted Interest or the
fifteenth day immediately preceding the Maturity of an installment of principal,
as the case may be, in order to be effective for the payment to be made thereon;
and provided further that no such change in currency may be made with respect to
payments to be made on any Debt Security with respect to which notice of
redemption has been given by the Issuer, pursuant to Article Eleven.
(b) Except as otherwise specified pursuant to Section 301, the Trustee or any
Paying Agent, as the case may be, shall deliver to the Issuer, not later than
the eighth Business Day after the Regular or Special Record Date with respect to
an Interest Payment Date or date for payment of Defaulted Interest or the
fifteenth day immediately preceding the Maturity of an installment of principal,
as the case may be, with respect to a series of Debt Securities, a written
notice specifying, in the currency or currencies in which the Debt Securities of
such series are denominated, the aggregate amount of the principal of (and
premium, if any) and interest on such Debt Securities to be paid on such payment
date. If payments on any such Debt Securities are designated to be made in a
currency other than the currency in which such Debt Securities are denominated
or if at least one Holder has made the election referred to in paragraph (a)
above, then such written notice shall also specify, in each currency in which
payment is to be made pursuant to paragraph (a), the amount of principal of (and
premium, if any) and interest on such series of Debt Securities to be paid in
such currency on such payment date.
(c) The Issuer shall deliver, not later than the fourth Business Day following
each Regular or Special Record Date or the fifteenth day immediately preceding
the Maturity of an installment of principal, as the case may be, to the Trustee
or to any Paying Agent, as the case may be, an Exchange Rate Officers'
Certificate in respect of the Dollar or Foreign Currency payments to be made on
such payment date. Except as otherwise specified pursuant to Section 301, the
amount receivable by Holders who have elected payment in a currency other than
the currency in which such Debt Securities are denominated as provided in
paragraph (a) above shall be determined by the Issuer on the basis of the
applicable Exchange Rate set forth in the applicable Exchange Rate Officers'
Certificate.
(d) Except as otherwise specified pursuant to Section 301, if the Foreign
Currency in which Debt Securities of a series is denominated ceases to be used
both by the government of the country which issued such currency and for the
settlement of transactions by banks, then with respect to each date for the
payment of principal of (and premium, if any) and interest on such Debt
Securities occurring after the final date on which the Foreign Currency was so
used, all payments with respect to such Debt Securities shall be made in
Dollars; provided that payment to a Holder of a Debt Security of such series
shall be made in a different Foreign Currency if that Holder has elected or
elects payment in such Foreign Currency as provided for by paragraph (a) above.
If payment is to be made in Dollars to the Holders of any such Debt Securities
pursuant to the provisions of the preceding sentence, then the amount to be paid
in Dollars on a payment date by the Issuer to the Trustee or to any Paying
Agent, as
27
the case may be, and by the Trustee or any Paying Agent to Holders shall be
determined by the Trustee or by any Paying Agent, as the case may be, as of the
Regular or Special Record Date with respect to such Interest Payment Date or
date for payment of Defaulted Interest or the fifteenth day immediately
preceding the Maturity of an installment of principal, as the case may be, and
shall be equal to the sum obtained by converting the specified Foreign Currency
into Dollars at the Exchange Rate on the last Record Date on which such Foreign
Currency was so used in such capacity.
(e) If a Holder of a Debt Security denominated in a composite currency has
elected payment in a specified Foreign Currency as provided for by paragraph (a)
and such Foreign Currency ceases to be used both by the government of the
country which issued such currency and for the settlement of transactions by
banks, such Holder shall, subject to paragraph (f) below, receive payment in
such composite currency; provided that such payment to such Holder shall be made
in a different Foreign Currency or in Dollars if that Holder has elected or
elects payment in such Foreign Currency or in Dollars as provided for by
paragraph (a) above.
(f) Except as otherwise specified as contemplated by Section 301, if any
composite currency in which a Debt Security is denominated or payable ceases to
be used for the purposes for which it was established, then with respect to each
date for the payment of principal of (and premium, if any) and interest on Debt
Securities of a series denominated in such composite currency occurring after
the last date on which such composite currency was so used (the "Conversion
Date"), all payments with respect to such Debt Securities shall be made in
Dollars; provided that payment to a Holder of a Debt Security of such series
shall be made in a Foreign Currency if that Holder has elected or elects payment
in such Foreign Currency as provided for by paragraph (a) above.
(g) If payment with respect to Debt Securities of a series denominated in any
composite currency is to be made in Dollars pursuant to the provisions of
Section 311(f) then the amount to be paid in Dollars on a payment date by the
Issuer to the Trustee or to any Paying Agent, as the case may be, and by the
Trustee or by any Paying Agent, as the case may be, to Holders shall be
determined by the Trustee or by any Paying Agent, as the case may be, as of the
Regular or Special Record Date with respect to such Interest Payment Date or
date for payment of Defaulted Interest or the fifteenth day immediately
preceding the Maturity of an installment of principal, as the case may be, and
shall be equal to the sum of the amounts obtained by converting each Component
of such composite currency into Dollars at the Exchange Rate for such Component
on such Record Date or fifteenth day, as the case may be, multiplied by the
number of units of such composite currency that would have been so paid had such
composite currency not ceased to be so used. If payment is to be made in Foreign
Currency to the Holders of Debt Securities of such series pursuant to Section
311(f), then the amount to be paid in such Foreign Currency on a payment date by
the Issuer to the Trustee or to any Paying Agent, as the case may be, and by the
Trustee or by any Paying Agent, as the case may be, to Holders shall be
determined by the Trustee or by any Paying Agent, as the case may be, as of the
Regular or Special Record Date with respect to such Interest Payment Date or
date for payment of Defaulted Interest or the fifteenth day immediately
preceding the Maturity of an installment of principal, as the case may be, and
shall be determined by (1) converting each Component of such composite currency
into Dollars at the Exchange Rate for such Component on such Record Date or
fifteenth day, as the case may be, and (2) converting the sum in Dollars so
obtained into such Foreign Currency at the Exchange Rate for such Foreign
Currency on such Record Date or fifteenth day, as the case may be.
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(h) All decisions and determinations of the Trustee or any Paying Agent, as the
case may be, regarding conversion of Foreign Currency into Dollars pursuant to
Sections 311(d) or 301 or the conversion of any composite currency into Dollars
or Foreign Currency pursuant to Sections 311(d) and (f) above or as specified
pursuant to Section 301 or the Exchange Rate shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Issuer
and all Holders of the Debt Securities. If a Foreign Currency or composite
currency in which payment of Debt Securities of a series may be made ceases to
be used both by the government of the country which issued such currency and for
the settlement of transactions by banks, the Issuer, after learning thereof,
will give notice pursuant to Section 105 thereof to the Trustee or to any Paying
Agent, as the case may be, immediately (and the Trustee or any Paying Agent, as
the case may be, promptly thereafter will give notice to the Holders in the
manner provided in Section 106) specifying as the case may be the last date on
which the Foreign Currency was used for the payment of principal of (and
premium, if any) or interest on such Debt Securities, or the Conversion Date
with respect to such composite currency and the Components of such composite
currency on such Conversion Date. If any Component subsequently changes, the
Issuer, after learning thereof, will give notice to the Trustee or to any Paying
Agent, as the case may be, similarly. The Trustee or any Paying Agent, as the
case may be, shall be fully justified, protected and otherwise held harmless in
relying and acting upon the information so received by the Issuer and shall not
otherwise have any duty or obligation to determine or verify such information
independently.
SECTION 312. JUDGMENTS.
(a) Any payment in respect of principal of (and premium, if any) and interest
otherwise due on Debt Securities made in Canadian currency by the Issuer or the
Guarantor, as the case may be, to any Holder of Debt Securities (the "Payee")
pursuant to a judgment or order of a court or tribunal in Canada shall
constitute a discharge of the Issuer or the Guarantor, as the case may be, only
to the extent of the amount of Dollars or Foreign Currency payable on such Debt
Securities (the "Purchased Amount") that the Payee, on the date of such payment
in Canadian currency, would be able to purchase with the amount so paid based on
the noon buying rate for Dollars or the Foreign Currency for wire transfers
quoted on the date of payment or, if such date is not a Business Day in Toronto,
Ontario, on the next Business Day in Xxxxxxx, Xxxxxxx. If the amount otherwise
due to the Payee (the "Amount Due") is greater or less than the Purchased
Amount, the Issuer or the Guarantor, as the case may be, shall indemnify and
hold harmless the Payee to the extent that the Amount Due exceeds the Purchased
Amount and the Issuer or the Guarantor, as the case may be, may retain the
amount, if any, by which the Amount Due is less than the Purchased Amount. This
indemnity shall constitute a separate and independent obligation from the other
obligations contained in this Indenture and shall give rise to a separate and
independent cause of action and shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in respect of amounts
due under the Debt Securities or any judgment or order.
SECTION 313. CUSIP NUMBERS.
The Issuer in issuing the Debt Securities may use "CUSIP" numbers (if then
generally accepted in use), and if so, the Trustee shall use "CUSIP" numbers in
notices and redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Debt Securities or as contained in
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any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Issuer
will promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
(a) This Indenture shall upon Issuer Request cease to be of further effect as to
the Issuer and the Guarantor (except as to any surviving rights of registration
of transfer or exchange of Debt Securities provided for herein and rights to
receive payments of principal of (and premium, if any) and interest thereon) and
the Trustee, at the expense of the Issuer, shall execute proper instruments
provided to it acknowledging satisfaction and discharge of this Indenture with
respect to the Issuer and the Guarantor, when:
(1) either
(i) all Debt Securities theretofore issued by the Issuer and
authenticated and delivered hereunder (other than: (x) Debt
Securities that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 306; and (y)
Debt Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from
such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(ii) all such Debt Securities issued by the Issuer and
authenticated and delivered hereunder and not theretofore
delivered to the Trustee for cancellation:
(x) have become due and payable;
(y) will become due and payable at their Stated
Maturity Date within one year; or
(z) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice by the
Trustee in the name, and at the expense, of
the Issuer,
and the Issuer, in the case of (ii)(x), (ii)(y) or (ii)(z) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust an amount sufficient to pay and discharge the
entire indebtedness on such Debt Securities for principal (and premium,
if any) and interest to the date of such deposit (in the case of Debt
Securities that have become due and payable) or to the Stated Maturity
Date or Redemption Date, as the case may be;
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(2) the Issuer or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Issuer or the Guarantor,
as the case may be; and
(3) the Issuer has delivered to the Trustee an Officers'
Certificate and Opinion of Counsel each stating that all
conditions precedent herein provided related to the
satisfaction and discharge of this Indenture have been
complied with.
(b) Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 606 and, if money shall
have been deposited with the Trustee pursuant to paragraph (a)(1)(ii) of this
Section, the obligations of the Trustee under Section 402 and Section 1003(e)
shall survive such satisfaction and discharge.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 1003(e), all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Debt Securities, the Guarantee and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer, acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
DEFAULTS AND REMEDIES
SECTION 501. EVENTS OF DEFAULT AND ENFORCEMENT.
(a) If and when any one or more of the following events (herein called an "Event
of Default") shall happen and be continuing with respect to the Debt Securities
of any series, namely:
(1) a default in payment of principal (and premium, if any) of any
Debt Security of such series when due;
(2) a default in payment of interest on any Debt Security of such
series when due and payable and the continuance of such
default for 30 days;
(3) a default in the deposit of any sinking fund payment on any
Debt Security of such series when due and the continuance of
such default for 30 days;
(4) a default in performing or observing any of the covenants,
agreements or other obligations of the Issuer or the Guarantor
as described herein for 90 days after written notice to the
Issuer or the Guarantor by the holders of not less than 25% in
principal amount of Outstanding Debt Securities of such series
requiring the same to be remedied;
(5) a decree, judgment, or order by a court having jurisdiction in
the premises shall have been entered adjudging the Issuer or
the Guarantor a bankrupt or insolvent or approving as properly
filed a petition seeking reorganization, readjustment,
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arrangement, composition or similar relief for the Issuer or
the Guarantor under any bankruptcy, insolvency or other
similar applicable law and such decree, judgment or order of a
court having jurisdiction in the premises for the appointment
of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of the Issuer or the Guarantor of a
substantial part of its property, or for the winding up or
liquidation of its affairs, shall have remained in force for a
period of 60 consecutive days; or any substantial part of the
property of the Issuer or the Guarantor shall be sequestered
or attached and shall not be returned to the possession of the
Issuer or the Guarantor or released from such attachment
whether by filing of a bond, or stay or otherwise within 60
consecutive days thereafter;
(6) the Issuer or the Guarantor shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file a
petition or answer or consent seeking reorganization,
readjustment, arrangement, composition or similar relief under
any bankruptcy, insolvency or other similar applicable law or
the Issuer or the Guarantor shall consent to the filing of any
such petition, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or
insolvency for it or of a substantial part of its property, or
shall make an assignment for the benefit of creditors, or
shall be unable, or admit in writing its inability, to pay its
debts generally as they become due, or corporate action shall
be taken by the Issuer or the Guarantor in furtherance of any
of the aforesaid actions;
(7) the occurrence of an event of default as defined in any
evidence of indebtedness for borrowed money of the Issuer or
the Guarantor exceeding on its face $100,000,000 in principal
amount, whether such indebtedness now exists or shall
hereafter be created, which results in such indebtedness
becoming or being declared due and payable prior to the date
on which it would otherwise become due and payable and such
acceleration shall not be rescinded or annulled within 10 days
after written notice (i) specifying such default, (ii)
requiring such defaulting entity to cause such acceleration to
be rescinded or annulled, and (iii) stating that such notice
is a "Notice of Default" thereunder, shall have been given to
such defaulting entity by the Trustee or to such defaulting
entity and the Trustee by the trustee under any such lien,
indenture or instrument, by the holder or holders of any such
indebtedness or by the agent of any such holder or holders; or
(8) any other Event of Default provided with respect to the Debt
Securities of that series;
then, and in each and every such case, the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Debt
Securities of such series at such time may declare the principal of
(and premium, if any) together with accrued interest on, all such Debt
Securities of such series to be due and payable immediately, by a
notice in writing to the Issuer and the Guarantor, and to the Trustee
if given by the Holders, and upon any such declaration such principal
amount (and premium, if any) together with accrued interest thereon,
shall become immediately due and payable.
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SECTION 502. WAIVER OF DECLARATION.
At any time after such a declaration of acceleration with respect to the Debt
Securities of a series has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter provided, the
Holders of a majority in principal amount of Outstanding Debt Securities of such
series, by written notice to the Issuer, the Guarantor and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Issuer or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay:
(i) all overdue interest on all the Debt Securities of
such series;
(ii) the principal of any of the Debt Securities of such
series which have become due otherwise than by such
declaration of acceleration, and interest thereon at
the rate or rates prescribed therefor in such Debt
Securities; and
(iii) to the extent that payment of such interest is lawful
and applicable, interest upon overdue installments of
interest at the rate or rates prescribed therefor in
such Debt Securities; and
(2) all Events of Default with respect to the Debt Securities of
such series, other than the non-payment of the principal of,
and interest on, such Debt Securities which have become due
solely by such declaration of acceleration, have been cured or
waived in accordance with the provisions of the Indenture.
SECTION 503. WAIVER.
(a) The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
Debt Securities of any such series waive any past or existing default hereunder
with respect to such series and its consequences, except a default:
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series; or
(2) in respect of a covenant or provision hereof that under
Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Debt Security of such series
affected.
(b) Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
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SECTION 504. OTHER REMEDIES.
(a) If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of (and premium, if any) or
interest on Debt Securities or to enforce the performance of any provision of
Debt Securities or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any Debt
Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies, except as
provided in Section 306, are cumulative to the extent permitted by law.
SECTION 505. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be applied in
the following order, at the dates fixed by the Trustee and, in case of the
distribution of such money on account of principal of (and premium, if any) or
interest, upon presentation of Debt Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid for principal of (and
premium, if any) and interest on Debt Securities, in respect of which or for the
benefit of which such money has been collected ratably, without preference or
priority of any kind, according to the amounts due and payable on such Debt
Securities for principal (and premium, if any) and interest, respectively. The
Holders of any Debt Securities denominated in a composite currency or a Foreign
Currency shall be entitled to receive a ratable portion of the amount determined
by the Trustee converting the principal amount Outstanding of such Debt
Securities and matured but unpaid interest on such Debt Securities in the
currency in which such Debt Securities are denominated into Dollars at the
Exchange Rate as of the date of declaration of acceleration of the Maturity of
the Debt Securities (or, if there is no such rate on such date for the reasons
specified in Section 311(d), such rate on the date specified in such Section);
and
THIRD: To the Issuer or, to the extent the Trustee collects any amount pursuant
to Section 203 hereof from the Guarantor, to the Guarantor.
SECTION 506. CONTROL BY HOLDERS.
(a) The Holders of at least a majority in principal amount of the
Outstanding Debt Securities of any series, may:
(1) 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 it with respect to the Debt
Securities of such series; and
(2) take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of
Debt Securities under any provisions of this Indenture or
under applicable law.
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(b) The Trustee may refuse, however, to follow any direction that conflicts with
law or this Indenture or is unduly prejudicial to the rights of other Holders.
SECTION 507. LIMITATION ON SUITS.
(a) A Holder of Debt Securities may pursue a remedy with respect to this
Indenture directly himself only if: (1) the Holder gives to the Trustee written
notice of a continuing Event of Default; (2) the Holders of at least 25% in
principal amount of all of the then Outstanding Debt Securities issued under the
Indenture (treated as a class) make a request in writing to the Trustee to
pursue the remedy; (3) such Holder or Holders indemnify the Trustee in form
satisfactory to it against any loss, liability, claim, damage or expense; (4)
the Trustee does not comply with the request within 60 days after receipt of
such request and indemnity; and (5) during such 60-day period the Holders of a
majority in principal amount of all of the Outstanding Debt Securities (treated
as a class) do not give the Trustee a direction inconsistent with the request.
(b) Holders may not use this Indenture to prejudice the rights of another Holder
or to obtain a preference or priority over another Holder.
SECTION 508. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of (and, premium, if any) and interest on Debt
Securities held by him, on or after the respective due dates expressed in the
Debt Securities (or, in the case of redemption, on the Redemption Date), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
SECTION 509. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 501(1), (2) or (3) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Issuer or the Guarantor for the whole amount of
principal (and premium, if any) and interest remaining unpaid.
SECTION 510. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and 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, expenses, disbursements and advances of
the Trustee) and the Holders allowed in any judicial proceedings relative to the
Issuer or the Guarantor, their respective creditors or their respective
property. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or compensation affecting the Debt
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 511. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this Indenture or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require
35
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 507, or a suit by any Holder
or group of Holders of more than 10% in principal amount of the Outstanding Debt
Securities.
SECTION 512. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Debt Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 513. WAIVER OF STAY OR EXTENSION LAWS.
The Issuer and the Guarantor each, severally and not jointly, covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer and the Guarantor each, severally and not jointly (to the extent that
it may lawfully do so), hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others shall
be inferred or implied; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; however, the
Trustee shall examine the certificates
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and opinions required to be delivered to it pursuant to the
terms of this Indenture to determine whether or not they so
conform.
(c) The Trustee may not be relieved from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 506; and
(4) no provision of the Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the Trustee is
subject to the above paragraphs of this Section. The Trustee may refuse to
perform any duty or exercise any right or power under this Indenture (including
with respect to Section 506) unless it receives indemnity reasonably
satisfactory to it for actions taken under this Indenture. The Trustee shall not
be liable for interest on any money received by it except as the Trustee may
agree in writing with the Issuer or the Guarantor. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required by
law.
SECTION 602. RIGHTS OF TRUSTEE.
The Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper person or persons. The Trustee need
not investigate any fact or matter stated in the document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Issuer, personally or by agent or attorney at the
sole cost of the Issuer and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation. 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 is herein
specifically prescribed). Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
thereon. The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through the appointment of a
co-trustee or through agents, attorneys, custodians or nominees and shall not be
responsible for the misconduct or negligence of any agent, attorney, custodian
or nominee appointed with due care.
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The Trustee shall not be liable for any action it takes or omits to take in good
faith without negligence or willful misconduct, except as otherwise provided in
this Indenture, which it reasonably believes to be authorized or within its
rights or powers. The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
SECTION 603. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Debt Securities and may otherwise deal with the Issuer or the
Guarantor with the same rights it would have if it were not Trustee. Any agent
of the Trustee may do the same with like rights. However, the Trustee is at all
times subject to Sections 609 and 610.
SECTION 604. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of Debt
Securities, it shall not be accountable for the Issuer's use of the proceeds
from Debt Securities, and it shall not be responsible for any statement in Debt
Securities other than its certificate of authentication.
SECTION 605. NOTICE OF DEFAULTS.
(a) If an Event of Default with respect to a series of Debt Securities occurs
and is continuing, the Trustee shall mail to Holders of Debt Securities of such
series a notice of the Event of Default within 90 days after it occurs. Except
in the case of an Event of Default resulting from nonpayment on any Debt
Securities, the Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the notice is
in the interests of the Holders of Debt Securities.
(b) Except in the case of an Event of Default resulting from nonpayment on any
Debt Security, the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Debt Securities and this Indenture.
SECTION 606. COMPENSATION AND INDEMNITY.
(a) The Issuer shall pay to the Trustee from time to time compensation for its
services as agreed separately by the Issuer and the Trustee. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust.
(b) The Issuer shall fully indemnify the Trustee and any predecessor Trustee and
their agents for, and hold them harmless against, any and all loss, damage,
claims, liability or expense (including reasonable attorneys' fees and expenses)
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder, except to the extent that such loss,
damage, claim, liability or expense is caused by its own negligence or bad faith
or, with respect to indemnification of an
38
agent hereunder, the negligence or bad faith of such agent. The Trustee shall
notify the Issuer promptly of any claim for which it may seek indemnity. The
Issuer shall defend the claim and the Trustee shall cooperate in the defense.
The Issuer need not pay for any settlement made without its consent.
(c) Except as otherwise expressly provided herein, the Issuer agrees to
reimburse the Trustee upon its request for all reasonable and documented
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable and
documented compensation, expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith or, with respect to documented compensation, expenses
and disbursements of an agent or attorney, the negligence or bad faith of such
agent or attorney.
(d) To secure the Issuer's payment obligations in this Section, the Trustee
shall have a lien prior to Debt Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on Debt Securities.
When the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(5) or Section 501(6), the reasonable and
documented expenses (including the reasonable and documented charges and
expenses of its counsel) and compensation for the services are intended to
constitute expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this Indenture
and the resignation or removal of the Trustee.
SECTION 607. REPLACEMENT OF TRUSTEE.
(a) A resignation or removal of the Trustee and appointment of a successor
Trustee for the Debt Securities of any series shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section.
(b) The Trustee may resign at any time with respect to Debt Securities of one or
more series by giving written notice thereof to the Issuer and the Guarantor. If
an instrument of acceptance by a successor Trustee shall not have been delivered
to the Trustee and to the Issuer and the Guarantor within 30 days after the
giving of such notice of resignation, the resigning Trustee may at the expense
of the Issuer petition any court of competent jurisdiction for the appointment
of a successor Trustee to the Trustee. The Holders of at least a majority in
principal amount of then Outstanding Debt Securities of such series may remove
the Trustee by so notifying the Trustee, the Issuer and the Guarantor in writing
if: (1) the Trustee fails to comply with Section 609; (2) the Trustee is
adjudged a bankrupt or an insolvent; (3) a receiver or public officer takes
charge of the Trustee or its property; or (4) the Trustee becomes incapable of
acting; in addition, in any such case, (i) the Issuer by a Board Resolution
thereof may remove the Trustee with respect to all Debt Securities, or (ii) any
Holder who has been a bona fide Holder of a Debt Security of any series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee for
the Debt Securities of such series and the appointment of a successor Trustee.
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(c) If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason with respect to the Debt Securities of one or more
series, the Issuer shall promptly appoint a successor Trustee or Trustees with
respect to the Debt Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Debt Securities
of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Debt Securities of any particular series) and
shall comply with the applicable requirements of this Section 607. Within one
year after the successor Trustee takes office, the Holders of a majority in
principal amount of Outstanding Debt Securities of any series may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuer with
respect to the Debt Securities of such series. If a successor Trustee does not
take office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Issuer or the Holders of at least 10% in principal amount
of the Debt Securities of any series may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(d) If the Trustee fails to comply with Section 609, any Holder of Debt
Securities may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
(e) The Issuer shall give notice of each resignation and each removal of the
Trustee with respect to Debt Securities of any series and each appointment of a
successor Trustee with respect to Debt Securities of any series in the manner
provided in Section 106. Each notice shall include the name of the successor
Trustee with respect to Debt Securities of such series and the address of its
Corporate Trust Office.
(f) In the case of an appointment hereunder of a successor Trustee with respect
to all Debt Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Issuer and to the Guarantor and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Issuer or the Guarantor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(g) In case of the appointment hereunder of a successor Trustee with respect to
Debt Securities of one or more (but not all) series, the Issuer, the Guarantor,
the retiring Trustee upon payment of its charges and each successor Trustee with
respect to Debt Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which: (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to Debt Securities of that or those series to which the appointment of such
successor Trustee relates; (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to Debt Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee; and (3) shall add to or change any
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of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Issuer, the Guarantor or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates.
(h) Upon request of any such successor Trustee, the Issuer and the Guarantor
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (f) or (g) of this Section, as the case may be.
(i) No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
SECTION 608. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee,
provided that prior written notice thereof is given to the Issuer and the
Guarantor and such successor corporation is acceptable to the Issuer and the
Guarantor.
SECTION 609. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the requirements of
Section 310(a)(1) of the Trust Indenture Act. The Trustee shall always have a
combined capital and surplus of at least $5 million, calculated as permitted by
Section 310(a)(2) of the Trust Indenture Act. The Trustee is subject to Section
310(b) of the Trust Indenture Act, including the optional provision permitted by
the second sentence of Section 310(b)(9) of the Trust Indenture Act.
SECTION 610. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER.
The Trustee is subject to Section 311(a) of the Trust Indenture Act, except with
respect to any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed is subject to Section
311(a) of the Trust Indenture Act to the extent indicated.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, ISSUER AND GUARANTOR
SECTION 701. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Debt Securities received by
the Trustee in its capacity as Security Registrar, if so acting.
(b) If three or more Holders of a series of Debt Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Debt Security for
a period of at least six months immediately preceding the date of such
application, and such application states that the applicants' desire to
communicate with other Holders of Debt Securities of a particular series (in
which case the applicants must hold Debt Securities of such series) or with all
Holders of Debt Securities with respect to their rights under this Indenture or
under the Debt Securities and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 701(a); or
(2) inform such applicants as to the approximate number of Holders
of Debt Securities of such series or of all Debt Securities,
as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 701(a), and as to the approximate cost of mailing
to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 701(a), a copy of the form
of proxy or other communication that is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender,
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otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Debt Securities, by receiving and holding the same, agrees
with the Issuer, the Guarantor and the Trustee that none of the Issuer, the
Guarantor or the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders in
accordance with Section 701(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 701(b).
SECTION 702. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year following the date of this
Indenture, the Trustee shall mail to Holders a brief report dated as of such
reporting date that complies with Section 313(a) of the Trust Indenture Act. The
Trustee shall also comply with Sections 313(b)(2) and 313(c) of the Trust
Indenture Act.
(b) A copy of each report at the time of its mailing to Holders shall be filed
with the Commission and each stock exchange on which Debt Securities of any
series are listed.
SECTION 703. REPORTS BY THE ISSUER AND THE GUARANTOR.
(a) The Issuer and the Guarantor will:
(1) file with the Trustee, within 15 days after the Issuer or the
Guarantor is required to file the same with the Commission,
copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Issuer or the Guarantor may
be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; or, if the Issuer or the
Guarantor is not required to file information, documents or
reports pursuant to either of these Sections, then the Issuer
or the Guarantor, as the case may be, will file with the
Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents
and reports that may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on
a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance thereby with the conditions and
covenants of this Indenture as may be required from time to
time by such rules and regulations; and
(3) notify the Trustee when Debt Securities of any series are
listed on any stock exchange.
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(b) Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(c) The Issuer and the Guarantor shall also comply with the provisions of
Section 314(a) of the Trust Indenture Act.
ARTICLE EIGHT
AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. AMALGAMATION AND MERGER OF ISSUER OR GUARANTOR AND CONVEYANCES
PERMITTED SUBJECT TO CERTAIN CONDITIONS.
So long as any Debt Security of a particular series remains Outstanding, neither
the Issuer nor the Guarantor will amalgamate or merge with any other corporation
or enter into any reorganization or arrangement or effect any conveyance,
transfer or lease of all or substantially all of the assets of it and its
Subsidiaries, taken as a whole (other than with or to the Guarantor, in the case
of the Issuer, or with or to the Issuer, in the case of the Guarantor), unless
in any such case:
(1) (a) the Issuer or the Guarantor, as the case may be, shall be
the surviving corporation or one of the continuing
corporations, or (b) the successor corporation (or the Person
that leases or that acquires by conveyance or transfer all or
substantially all of the assets of the Issuer and its
Subsidiaries, taken as a whole, or the Guarantor and its
Subsidiaries, taken as a whole, as the case may be,) shall
expressly assume the due and punctual payment of the principal
of (and premium, if any) and interest on all Outstanding Debt
Securities issued hereunder, according to their tenor, and the
due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by
the Issuer or the Guarantor by supplemental indenture pursuant
to Article Nine satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation; and
(2) the Issuer or the Guarantor, as the case may be, or the
successor corporation shall not, immediately thereafter be in
default under this Indenture or the Debt Securities.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
(a) In case of any such amalgamation, merger, reorganization, arrangement,
conveyance, transfer or lease and upon any such assumption by the successor
corporation, such successor corporation shall agree to be bound by the terms of
this Indenture as principal obligor or guarantor in place of the Issuer or the
Guarantor with the same effect as if it had been named herein as the Issuer or
the Guarantor. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Issuer or the Guarantor,
as the case may be, any or all of Debt Securities of any series issuable
hereunder (including the
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Guarantee endorsed thereon) hereunder which theretofore shall not have been
signed by the Issuer or the Guarantor, and delivered to the Trustee. All Debt
Securities so issued, including the Guarantee endorsed thereon, shall in all
respects have the same legal rank and benefit under this Indenture as Debt
Securities and the Guarantee theretofore or thereafter issued or endorsed in
accordance with the terms of this Indenture as though all of such Debt
Securities and the Guarantee had been issued or endorsed at the date of the
execution hereof.
(b) In the case of any such amalgamation, merger, reorganization, arrangement,
conveyance, transfer or lease, such changes in phraseology and form (but not in
substance) may be made in Debt Securities, including the Guarantee endorsed
thereon, thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Trustee shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any such amalgamation, merger, reorganization,
arrangement, conveyance, transfer or lease, and any such assumption, comply with
the provisions of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Issuer and the Guarantor, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Issuer or the
Guarantor, and the assumption by such successor of the covenants of the Issuer
or the Guarantor herein and in the Debt Securities or the Guarantee, as the case
may be;
(2) to add to the covenants of the Issuer or the Guarantor, as the case may be,
for the benefit of the Holders of all or any series of Debt Securities (and, if
such covenants are to be for the benefit of less than all series of Debt
Securities, stating that such covenants are expressly being included solely for
the benefit of such series), or to surrender any right or power herein conferred
upon the Issuer or the Guarantor;
(3) to add any additional Events of Default (and, if such Events of Default are
to be applicable to less than all series of Debt Securities, stating that such
Events of Default are expressly being included solely to be applicable to such
series); provided, however, that in respect of any such additional Events of
Default such supplemental indenture may provide for a particular grace period
after default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such default or
may limit the right of the Holders of a majority in aggregate principal amount
of the series of Debt Securities to which such additional Events of Default
apply to waive such default;
45
(4) to change or eliminate any restrictions on the payment of principal (or
premium, if any) of Debt Securities, provided that any such action shall not
adversely affect the interests of the Holders of Debt Securities of any series
in any material respect;
(5) to change or eliminate any of the provisions of this Indenture, provided
that any such change or elimination shall become effective only when there is no
Outstanding Debt Security of any series created prior to the execution of such
supplemental indenture that is entitled to the benefit of such provision;
(6) to establish the form or terms of Debt Securities of any series as permitted
by Sections 201 and 301;
(7) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Debt 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;
(8) to add guarantees to or to further guarantee the Debt Securities;
(9) to supplement any of the provisions of the Indenture to such extent as shall
be necessary to permit or facilitate the defeasance and discharge of any series
of Debt Securities pursuant to Sections 401, 1301 or 1302; provided that any
such action shall not adversely affect the interests of the Holders of Debt
Securities of such series or any other series of Debt Securities in any material
respect;
(10) to cure any ambiguity, to correct or supplement any provision herein that
may be defective or inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture that shall not be inconsistent with any provisions of this Indenture,
provided such other provisions shall not adversely affect the interests of the
Holders of Debt Securities of any series in any material respect;
(11) to provide for uncertificated Debt Securities in addition to or in place of
certificated Debt Securities;
(12) to secure the Debt Securities;
(13) to make any changes that would provide any additional rights or benefits to
Holders of Debt Securities or that do not adversely affect the legal rights
under the Indenture of any such Holder;
(14) to comply with the requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act;
(15) to provide for the conversion rights of Holders of Debt Securities in
certain events such as an amalgamation, consolidation, merger or sale of all or
substantially all of the assets of the Issuer or the Guarantor, as the case may
be; or
(16) to reduce the conversion price, if applicable, of any series of Debt
Securities.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
(a) Except as provided in Section 901, with the consent of the Holders of not
less than a majority in principal amount of the Outstanding Debt Securities
affected by such supplemental indenture, by Act of said Holders delivered to the
Issuer, the Guarantor and the Trustee, the Issuer and the Guarantor, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this Indenture of
such Debt Securities; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Debt Security
affected thereby:
(1) change the Stated Maturity Date of the principal of, or any
installment of interest on, any Debt Security, or reduce the
principal amount thereof or the interest thereon or any
premium payable upon redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 501, or change any
Place of Payment, or change the currency in which any Debt
Security or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on
or after the Stated Maturity Date thereof (or, in the case of
redemption, on or after the Redemption Date);
(2) reduce the percentage in principal amount of the Outstanding
Debt Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent
of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1404 for
quorum or voting;
(3) modify any of the provisions of this Section, Section 503 or
Section 1005, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of
each Outstanding Debt Security affected thereby; provided,
however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this
Section and Section 1005, or the deletion of this proviso, in
accordance with the requirements of Section 901(7); or
(4) change in any manner adverse to the interests of the Holders
of any Outstanding Debt Securities the terms and conditions of
the obligations of the Guarantor in respect of the due and
punctual payment of the principal (or, if the context so
requires, lesser amount in the case of Original Issue Discount
Securities) thereof (and premium, if any, thereon) and
interest thereon or any additional amounts or any sinking fund
or analogous payments provided in respect thereof.
(b) It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
47
(c) A supplemental indenture that changes or eliminates any covenant or other
provisions of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Debt Securities, or that modifies
the rights of the Holders of Debt Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities of any other series.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article (other than Section 901(6))or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and, subject to Section 601, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, is not
inconsistent herewith, is a valid and binding obligation of the Issuer and the
Guarantor, enforceable in accordance with its terms, subject to enforceability
being limited by bankruptcy, insolvency or other laws or foreign governmental
actions affecting the enforcement of creditors' rights generally and equitable
remedies including the remedies of specific performance and injunction being
granted only in the discretion of a court of competent jurisdiction and, in
connection with a supplemental indenture executed pursuant to Section 901, that
the Trustee is authorized to execute and deliver such supplemental indenture
without the consent of the Holders and, in connection with a supplemental
indenture executed pursuant to Section 902, that the requisite consents of the
Holders have been validly obtained in accordance with Section 902 hereof. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered under
this Indenture shall be bound by the supplemental indenture.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall conform to
the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES.
Debt Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Guarantor
shall so determine, new Debt Securities of any series including the Guarantee
endorsed thereon, so modified as to conform, in the opinion of the Trustee and
the Board of Directors, to any such supplemental indenture may be prepared and
executed by the Issuer and the Guarantor and authenticated and delivered by the
Trustee in exchange for Outstanding Debt Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Issuer covenants and agrees for the benefit of each particular series of
Debt Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Debt Securities in accordance with their
terms and this Indenture. Principal (and premium, if any) or interest payable
with respect to any Debt Securities shall be considered paid on the date due if
the Paying Agent, or the Issuer if it acts as its own Paying Agent, holds on
that date money sufficient to pay all principal (and premium, if any) and
interest then due.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Issuer will maintain in each Place of Payment for any series of Debt
Securities issued thereby an office or agency where Debt Securities of such
series may be presented or surrendered for payment, where Debt Securities of
such series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Issuer in respect of the Debt
Securities of such series and this Indenture may be served; and the Guarantor
will maintain in the City of New York an office or agency where notices and
demands to or upon the Guarantor in respect of Debt Securities of any series and
this Indenture may be served. The Issuer and the Guarantor will give prompt
written notice to the Trustee of the location, and any change in the location
of, any such office or agency. If at any time the Issuer or the Guarantor shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee and
the Issuer and the Guarantor each hereby appoints the Trustee its agent to
receive all such presentations, surrenders, notices and demands.
(b) The Issuer may also from time to time designate one or more other offices or
agencies (in or outside of such Place of Payment) where the Debt Securities of
one or more series may be presented or surrendered for any or all of such
purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency in each Place of
Payment for any series of Debt Securities, for such purposes. The Issuer will
give prompt written notice to the Trustee of any such designation and any change
in the location of any such other office or agency.
SECTION 1003. MONEY FOR DEBT SECURITIES PAYMENTS TO BE HELD IN TRUST.
(a) If the Issuer shall at any time act as its own Paying Agent with respect to
any series of Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Debt Securities of
such series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee in writing
of its action or failure so to act.
49
(b) Whenever the Issuer shall have one or more Paying Agents with respect to any
series of Debt Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Debt Securities of such series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Issuer will promptly notify the Trustee in writing of
its action or failure so to act.
(c) The Issuer will cause each Paying Agent with respect to any series of Debt
Securities, other than the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Debt Securities of such
series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Issuer
or the Guarantor (or any other obligor upon the Debt
Securities of such series or Guarantee endorsed thereon) in
the making of any payment of principal of (and premium, if
any) or interest on the Debt Securities of such series or the
Guarantee endorsed thereon; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
(d) The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Issuer
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Issuer or the Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Issuer or the Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, the Paying
Agent shall be released from all further liability with respect to such money.
(e) Any money deposited with the Trustee or any Paying Agent, or then held by
the Issuer or the Guarantor, in trust for the payment of the principal of (and
premium, if any) or interest on any Debt Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Issuer or the Guarantor on
Issuer Request or Guarantor Request, as the case may be, or (if then held by the
Issuer or the Guarantor) shall be discharged from such trust; and the Holder of
such Debt Security shall thereafter, as an unsecured general creditor, look only
to the Issuer or the Guarantor, as the case may be, for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuer or the Guarantor, as the case may be, as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Issuer or the Guarantor, as the case may be, cause to be
published once, in an Authorized Newspaper of general circulation in the Borough
of Manhattan, the City of New York, and each
50
Place of Payment or mailed to each such Holder, or both, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Issuer or the
Guarantor, as the case may be.
SECTION 1004. COMPLIANCE CERTIFICATE.
The Issuer and the Guarantor shall each deliver an Officers' Certificate to the
Trustee within 120 days after the end of each fiscal year thereof stating
whether the signers know of any Event of Default that occurred during the fiscal
year. If an Event of Default shall have occurred, the applicable certificate
shall describe the nature of the Event of Default and its current status. The
certificate shall be in a form in compliance with the Trust Indenture Act.
SECTION 1005. WAIVER OF CERTAIN COVENANTS.
The Issuer and the Guarantor may omit in any particular instance to comply with
any covenant or condition with respect to the Debt Securities of any series if,
before the time for such compliance, the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Issuer and
the Guarantor and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Debt Securities of any series that are redeemable before their Stated Maturity
Date shall be redeemable in accordance with their terms and (except as otherwise
specified pursuant to Section 301 for Debt Securities of any series) in
accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
If the Issuer elects to redeem less than all of the Debt Securities of any
series, the Issuer shall, at least 45 days prior to the Redemption Date fixed by
the Issuer (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of Debt
Securities of any series to be redeemed.
SECTION 1103. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED.
(a) Except as otherwise specified pursuant to Section 301 for Debt Securities of
any series, if less than all the Debt Securities of any series are to be
redeemed, the particular Debt Securities to be redeemed shall be selected not
more than 45 days prior to the Redemption Date by the Trustee from the
Outstanding Debt Securities of such series not previously called for redemption,
by a method that complies with the requirements of the principal national
securities exchange or quotation system (which shall be provided or caused to be
provided by the Issuer to the Trustee),
51
if any, on which the Debt Securities are listed or quoted or, if the Debt
Securities are not so listed or quoted, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Debt Securities of
such series or any integral multiple thereof that is also an authorized
denomination, but in no event shall such portion be less than $1,000) of the
principal amount of Debt Securities (if issued in more than one authorized
denomination) of such series of a denomination larger than the minimum
authorized denomination for Debt Securities of such series.
(b) The Trustee shall promptly notify the Issuer and the Guarantor in writing of
the Debt Securities selected for redemption and, in the case of any Debt
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
(c) For all purposes of this Indenture, unless the context otherwise requires,
all provisions related to the redemption of Debt Securities shall relate, in the
case of any Debt Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debt Security that has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
(a) Notice of redemption shall be given in the manner provided in Section 106
not less than 20 or more than 60 days prior to the Redemption Date, to each
Holder of Debt Securities, at such Holder's address shown on the Security
Register maintained by the Security Registrar, to be redeemed.
(b) All notices of redemption shall state: (1) the Redemption Date; (2) the
Redemption Price; (3) if less than all Outstanding Debt Securities of any series
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed; (4)
that on the Redemption Date, the Redemption Price will become due and payable
upon each such Debt Security to be redeemed, and that interest thereon shall
cease to accrue on and after said date; (5) the Place or Places of Payment where
such Debt Securities are to be surrendered for payment of the Redemption Price;
and (6) that the redemption is for a sinking fund, if such is the case.
(c) Notice of redemption of Debt Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer.
(d) The notice if mailed in the manner herein provided shall be conclusively
presumed to have been given, whether or not the Holder receives such notice. In
any case, failure to give such notice by mail or any defect in the notice to the
Holder of any Debt Security designated for redemption in whole or in part shall
not affect the validity of the proceedings for the redemption of any other Debt
Securities or portion thereof.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Issuer shall deposit with the Trustee or
with a Paying Agent (or, if the Issuer is acting as its own Paying Agent,
segregate and hold in trust as provided
52
in Section 1003) an amount of money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Debt Securities or portions thereof that are to be redeemed
on that date; provided, however, that any funds deposited on the Redemption Date
shall be deposited by the Issuer no later than 12:00 p.m., New York City time on
such Redemption Date. The Trustee or the Paying Agent shall promptly return to
the Issuer any money not required for that purpose.
SECTION 1106. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.
(a) Notice of redemption having been given as aforesaid, the Debt Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price specified in such notice. From and after such date (unless the
Issuer shall default in the payment of the Redemption Price and accrued
interest) such Debt Securities shall cease to bear interest. Upon surrender of
any such Debt Security for redemption in accordance with the notice, such Debt
Security shall be paid by the Issuer at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments of
interest on Debt Securities whose Stated Maturity Date is on or prior to the
Redemption Date shall be payable to the Holders of such Debt Securities, or one
or more Predecessor Securities, registered as such on the relevant Regular
Record Dates according to their terms and the provisions of Section 307.
(b) If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
SECTION 1107. DEBT SECURITY REDEEMED IN PART.
Any Debt Security that is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Issuer, the Security Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Issuer, the Security Registrar and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Issuer shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Debt Security without service charge, a new Debt Security or Debt
Securities of the same series, each having endorsed thereon the Guarantee
executed by the Guarantor, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Debt Security so surrendered; except that if a
Global Security is so surrendered, the Issuer shall execute, and the Trustee
shall authenticate and deliver to the Depositary for such Global Security,
without service charge, a new Global Security, each having endorsed thereon the
Guarantee executed by the Guarantor, in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Global Security so
surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for the
retirement of Debt Securities of a series except as otherwise specified pursuant
to Section 301 for Debt Securities of such series. The minimum amount of any
sinking fund payment provided for by the terms of Debt 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 Debt Securities of
any series is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Debt Securities of any series, the amount of any
sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Debt Securities
of any series as provided for by the terms of such Debt Securities.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBT SECURITIES.
The Issuer or the Guarantor may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption) and may apply as a credit Debt
Securities of a series that have been redeemed either at the election of the
Issuer pursuant to the terms of such Debt Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such Debt
Securities, in each case, in satisfaction of all or any part of any sinking fund
payment with respect to such Debt Securities of such series required to be made
pursuant to, and as provided for by, their terms; provided that such Debt
Securities have not been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any series of
Debt Securities (unless a shorter period shall be satisfactory to the Trustee),
the Issuer will deliver to the Trustee an Officers' Certificate of such entity
specifying the amount of the next sinking fund payment for that series pursuant
to the terms of that series, the portion thereof, if any, that is to be
satisfied by payment of cash, the portion thereof, if any, that is to be
satisfied by delivering and crediting Debt Securities of that series pursuant to
Section 1202 and the basis for any such credit and, prior to or concurrently
with the delivery of such Officers' Certificate, will also deliver to the
Trustee any Debt Securities to be so credited and not theretofore delivered to
the Trustee. Not less than 45 days (unless a shorter period shall be
satisfactory to the Trustee) before each such sinking fund payment date the
Trustee shall select the Debt Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Issuer
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Sections 1105, 1106 and 1107.
54
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. DISCHARGE BY DEPOSIT OF MONEY OR DEBT SECURITIES.
(a) This Section 1301 shall be applicable to Debt Securities of a series if so
provided pursuant to Section 301. All obligations, covenants and agreements of
the Issuer and the Guarantor under this Indenture with respect to Debt
Securities and the related Guarantee of a particular series or for the benefit
of the Holders thereof (except as to any surviving rights of registration of
transfer or exchange of Debt Securities or herein expressly provided for) shall
cease, terminate and be discharged if:
(1) the Issuer or the Guarantor has, at least 91 days prior
thereto, irrevocably deposited with the Trustee, as specific
security pledged for, and dedicated solely to, the due payment
and ultimate satisfaction of its obligations under the
Indenture with respect to the Debt Securities of the series
affected,
(i) funds in the currency, currencies or currency units in
which the Debt Securities are payable, and/or
(ii) an amount of direct obligations of, or obligations the
payment of principal of and interest, if any, on are fully
guaranteed by, the government that issued the currency or
currencies in which Debt Securities of such series are
payable, and that are not subject to prepayment, redemption or
call,
as will together with the predetermined and certain income to accrue
thereon without consideration of any reinvestment thereof, be
sufficient (in the case of such obligations, through the payment of
interest and principal thereunder) to pay (A) the principal of (and
premium, if any) and interest on the Outstanding Debt Securities of the
particular series on the Stated Maturity Date of such principal or
interest or of any installment thereof, and (B) any mandatory
prepayments or analogous payments applicable to such Debt Securities on
the day on which such payments are due and payable in accordance with
the terms of this Indenture and such Debt Securities;
(2) the Issuer and the Guarantor shall have received an Opinion of
Counsel to the effect that Holders of such Debt Securities
will not recognize income, gain or loss for United States
federal income tax purposes as a result of such deposit and
defeasance in respect of the Issuer's and Guarantor's
obligations and will be subject to United States federal
income tax as if such deposit and defeasance had not occurred;
(3) the Issuer and the Guarantor shall have received an Opinion of
Counsel to the effect that the Holders of the Debt Securities
affected will not recognize income (whether taxable to them by
deduction or withholding by the Issuer or the Guarantor or
otherwise), gain or loss for Canadian federal income tax
purposes as a result of such deposit and defeasance in respect
of the Issuer's and Guarantor's
55
obligations and will be subject to Canadian federal income tax
as if such deposit and defeasance had not occurred;
(4) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other
material agreement or instrument to which the Issuer or the
Guarantor is a party or by which it is bound;
(5) no Event of Default with respect to the Debt Securities of
such series or event that, with notice or lapse of time, would
become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(6) if such Debt Securities are listed on the New York Stock
Exchange, the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect that such deposit and
defeasance will not cause such Debt Securities to be delisted;
and
(7) the Issuer or the Guarantor, as the case may be, shall have
delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating compliance with all
conditions precedent to the defeasance contemplated by Section
1301 or Section 1302.
(b) Notwithstanding any defeasance under this Indenture with respect to such
series of Debt Securities, the obligation of the Issuer to indemnify and
compensate the Trustee under this Indenture and the obligations of the Trustee
under Sections 1003 and 1303 shall survive with respect to such series of Debt
Securities.
SECTION 1302. DEFEASANCE OF CERTAIN OBLIGATIONS.
The Issuer and the Guarantor, as the case may be, or both, may omit to comply
with the terms, provisions and conditions set forth in any covenant contained in
Article Ten and any such omission shall not be an Event of Default, with respect
to any series of Debt Securities, provided the following conditions have been
satisfied:
(1) the conditions set forth in clauses (1) to (7), inclusive of
Section 1301(a); and
(2) such deposit shall not cause the Trustee with respect to such
series of Debt Securities to have a conflicting interest,
within the meaning of this Indenture, and for purposes of the
Trust Indenture Act with respect to such Debt Securities.
SECTION 1303. APPLICATION OF TRUST MONEY.
All money deposited with the Trustee pursuant to Sections 1301 and 1302 shall be
held in trust and applied by it, in accordance with the provisions of the Debt
Securities and this Indenture and any applicable direction of the Issuer or the
Guarantor to the payment, either directly or through any Paying Agent (including
the Issuer acting as its own Paying Agent), as the Trustee may determine, to the
persons entitled thereto, of the principal (and premium, if any) and interest
for whose payment such money has been deposited with the Trustee.
56
SECTION 1304. REPAYMENT TO THE ISSUER.
(a) The Trustee and any Paying Agent shall promptly pay to the Issuer or the
Guarantor upon Issuer Request or Guarantor Request, as the case may be, any
money or governmental obligations not required for the payment of the principal
of (and premium, if any) and interest on Debt Securities of any series for which
currency or government obligations have been deposited pursuant to Section 1301
or Section 1302 held by them at any time.
(b) The Trustee and any Paying Agent shall pay to the Issuer or the Guarantor
upon Issuer Request or Guarantor Request, as the case may be, any money held by
them for the payment of principal (and premium, if any) and interest that
remains unclaimed for two years after the Maturity of the Debt Securities for
which a deposit has been made pursuant to Section 1301 or Section 1302. After
such payment to the Issuer or the Guarantor, as the case may be, the Holders of
Debt Securities of such series shall thereafter, as unsecured general creditors,
look only to the Issuer or the Guarantor, as the case may be, for payment
thereof.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Debt Securities of such series may be called at any time
and from time to time pursuant to this Article to make, give or take any Act
provided by this Indenture to be made, given or taken by Holders of Debt
Securities of such series.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Debt Securities of
any series for any purpose specified in Section 1401, to be held at such time
and at such place in the Borough of Manhattan, the City of New York. Notice of
every meeting of Holders of Debt Securities of any series, setting forth the
time and place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section 106,
not less than 21 or more than 50 days prior to the date fixed for the meeting.
(b) If at any time the Issuer or the Guarantor, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Debt
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Debt Securities of such series for any purpose specified in
Section 1401, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Issuer or the Guarantor or the Holders of Debt
Securities of such series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, the City of New
York for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in paragraph (a) of this Section.
57
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Debt Securities of any
series, a Person shall be: (1) a Holder of one or more Outstanding Debt
Securities of such series; or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Debt Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders of Debt Securities of any
series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of
the Issuer and the Guarantor and their counsel.
SECTION 1404. QUORUM; ACTION.
(a) The Persons entitled to vote a majority in principal amount of Outstanding
Debt Securities of a series shall constitute a quorum for a meeting of Holders
of Debt Securities of such series. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Debt Securities of such series, be dissolved. In the
absence of a quorum in any other case the meeting may be adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in paragraph 1402(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened.
(b) Except as limited by the proviso to Section 902, any resolution presented to
a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of Outstanding Debt Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any Act that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of Outstanding Debt Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of Outstanding Debt Securities of that
series.
(c) Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with this Section will be
binding on all Holders of Debt Securities of such series, whether or not present
or represented at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any meeting of Holders
of Debt Securities of such series in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the
58
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Debt Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in the
manner specified in Section 104. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary chairman
of the meeting, unless the meeting shall have been called by the Issuer, the
Guarantor or by Holders of Debt Securities as provided in Section 1402(b), in
which case the Issuer, Guarantor or the Holders of Debt Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of Outstanding Debt Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Debt Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount (or the equivalent in
any composite currency or a Foreign Currency at the date of issue) of Debt
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly called pursuant
to Section 1402 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of Outstanding Debt
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
(a) The vote upon any resolution submitted to any meeting of Holders of Debt
Securities of any series shall be by written ballots on which shall be inscribed
the signatures of the Holders of Debt Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of
Outstanding Debt Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Debt Securities of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Issuer and the Guarantor and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
59
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
60
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
Per:
------------------------------------
Title:
NORTEL NETWORKS LIMITED,
as Issuer
Per:
------------------------------------
Title:
Per:
------------------------------------
Title:
NORTEL NETWORKS CORPORATION,
as Guarantor
Per:
------------------------------------
Title:
Per:
------------------------------------
Title:
61
EXHIBIT A
FORM OF ELECTION TO RECEIVE PAYMENTS IN
[DOLLARS OR OTHER APPLICABLE CURRENCY]
OR TO RESCIND SUCH ELECTION
The undersigned, registered owner of certificate number R- ,
representing [name of series of Debt Securities] (the "Debt Securities") in an
aggregate principal amount of , hereby
[ ] elects to receive all payments in respect of the Debt Securities in
[Dollars or other applicable currency], it being understood that such
election shall take effect as provided in the Debt Securities and,
subject to the terms and conditions set forth in the indenture under
which the Debt Securities were issued, shall remain in effect until it
is rescinded by the undersigned or until such certificate is
transferred.
[ ] rescinds the election previously submitted by the undersigned to
receive all payments in respect of the Debt Securities in [Dollars or
other applicable currency], it being understood that such rescission
shall take effect as provided in Debt Securities.
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(Name of Owner)
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(Signature of Owner)
A-1
