Exhibit 4.1
-------------------------------
NICE-SYSTEMS LTD.
TO
__________________________,
TRUSTEE
------------
INDENTURE
SENIOR DEBT SECURITIES
DATED AS OF ___________ __, ____
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TABLE OF CONTENTS
<TABLE>
ARTICLE ONE Definitions and Other Provisions of General Application ..................... 1
Section 101. Definitions ................................................................. 1
Section 102. Compliance Certificates and Opinions ........................................ 8
Section 103. Form of Documents Delivered to Trustee ...................................... 9
Section 104. Acts of Holders ............................................................. 10
Section 105. Notices, etc. to Trustee and Company ........................................ 11
Section 106. Notice to Holders of Securities; Waiver ..................................... 12
Section 107. Conflict with Trust Indenture Act ........................................... 13
Section 108. Effect of Headings and Table of Contents .................................... 13
Section 109. Successors and Assigns ...................................................... 13
Section 110. Separability Clause ......................................................... 13
Section 111. Benefits of Indenture ....................................................... 13
Section 112. Governing Law ............................................................... 14
Section 113. Legal Holidays .............................................................. 14
Section 114. Consent to Jurisdiction; Appointment of Agent for Service; Judgment Currency;
Waiver of Immunities ........................................................ 14
ARTICLE TWO Security Forms .............................................................. 16
Section 201. Forms Generally ............................................................. 16
Section 202. Form of Legend for Global Securities ........................................ 16
Section 203. Form of Trustee's Certificate of Authentication ............................. 17
ARTICLE THREE The Securities ............................................................ 17
Section 301. Amount Unlimited; Issuable in Series ........................................ 17
Section 302. Denominations ............................................................... 21
Section 303. Execution, Authentication, Delivery and Dating .............................. 21
Section 304. Temporary Securities ........................................................ 24
Section 305. Registration, Registration of Transfer and Exchange ......................... 24
Section 306. Mutilated, Destroyed, Lost and Stolen Securities ............................ 26
Section 307. Payment of Interest; Interest Rights Preserved .............................. 27
Section 308. Persons Deemed Owners ....................................................... 28
Section 309. Cancellation by Security Registrar .......................................... 29
Section 310. Computation of Interest ..................................................... 29
Section 311. Extension of Interest Payment, Deferral of Interest Payment ................. 30
Section 312. Payment to Be in Proper Currency ............................................ 30
ARTICLE FOUR Redemption of Securities ................................................... 30
Section 401. Applicability of Article .................................................... 30
Section 402. Election to Redeem; Notice to Trustee ....................................... 30
Section 403. Selection of Securities to Be Redeemed ...................................... 31
Section 404. Notice of Redemption ........................................................ 31
Section 405. Securities Payable on Redemption Date ....................................... 32
</TABLE>
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<TABLE>
Section 406. Securities Redeemed in Part ................................................... 33
ARTICLE FIVE Sinking Funds .................................................................. 33
Section 501. Applicability of Article ...................................................... 33
Section 502. Satisfaction of Sinking Fund Payments with Securities ......................... 34
Section 503. Redemption of Securities for Sinking Fund ..................................... 34
ARTICLE SIX Covenants ....................................................................... 35
Section 601. Payment of Principal, Premium and Interest ................................... 35
Section 602. Maintenance of Office or Agency .............................................. 35
Section 603. Money for Securities Payments to Be Held in Trust ............................ 36
Section 604. Corporate Existence .......................................................... 37
Section 605. Maintenance of Properties .................................................... 37
Section 606. Annual Officer's Certificate as to Compliance ................................ 37
Section 607. Waiver of Certain Covenants .................................................. 38
Section 608. Calculation of Original Issue Discount ....................................... 38
ARTICLE SEVEN Defeasance; Satisfaction and Discharge ...................................... 38
Section 701. Defeasance ................................................................... 38
Section 702. Satisfaction and Discharge of Indenture ...................................... 40
Section 703. Application of Trust Money ................................................... 41
ARTICLE EIGHT Events of Default; Remedies ................................................. 42
Section 801. Events of Default ............................................................ 42
Section 802. Declaration of Acceleration; Rescission and Annulment ........................ 43
Section 803. Collection of Indebtedness and Suits for Enforcement by Trustee .............. 44
Section 804. Trustee May File Proofs of Claim ............................................. 45
Section 805. Trustee May Enforce Claims Without Possession of Securities .................. 45
Section 806. Application of Money Collected ............................................... 45
Section 807. Limitation on Suits .......................................................... 46
Section 808. Unconditional Right of Holders to Receive Principal, Premium and Interest .... 47
Section 809. Restoration of Rights and Remedies ........................................... 47
Section 810. Rights and Remedies Cumulative ............................................... 47
Section 811. Delay or Omission Not Waiver ................................................. 47
Section 812. Control by Holders of Securities ............................................. 47
Section 813. Waiver of Past Defaults ...................................................... 48
Section 814. Undertaking for Costs ........................................................ 48
Section 815. Waiver of Stay or Extension Laws ............................................. 49
ARTICLE NINE The Trustee .................................................................. 49
Section 901. Certain Duties and Responsibilities .......................................... 49
Section 902. Notice of Defaults ........................................................... 50
Section 903. Certain Rights of Trustee .................................................... 50
</TABLE>
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<TABLE>
Section 904. Not Responsible for Recitals or Issuance of Securities .............. 52
Section 905. May Hold Securities ................................................. 52
Section 906. Money Held in Trust ................................................. 52
Section 907. Compensation and Reimbursement ...................................... 52
Section 908. Disqualification; Conflicting Interests ............................. 53
Section 909. Corporate Trustee Required; Eligibility ............................. 53
Section 910. Resignation and Removal; Appointment of Successor ................... 54
Section 911. Acceptance of Appointment by Successor .............................. 56
Section 912. Merger, Conversion, Consolidation or Succession to Business ......... 57
Section 913. Preferential Collection of Claims Against Company ................... 57
Section 914. Co-trustees and Separate Trustees ................................... 58
Section 915. Appointment of Authenticating Agent ................................. 59
ARTICLE TEN Holders' Lists and Reports by Trustee and Company ...................... 61
Section 1001. Lists of Holders .................................................... 61
Section 1002. Reports by Trustee and Company ...................................... 61
ARTICLE ELEVEN Consolidation, Merger, Conveyance or Other Transfer ................. 62
Section 1101. Company May Consolidate, etc., Only on Certain Terms .............. 62
Section 1102. Successor Person Substituted ...................................... 62
Section 1103. Merger into Company; Certain Transfers ............................ 62
Section 1104. Consolidation Defined ............................................. 63
ARTICLE TWELVE Supplemental Indentures ........................................... 63
Section 1201. Supplemental Indentures Without Consent of Holders ................ 63
Section 1202. Supplemental Indentures With Consent of Holders ................... 64
Section 1203. Execution of Supplemental Indentures .............................. 66
Section 1204. Effect of Supplemental Indentures ................................. 66
Section 1205. Conformity with Trust Indenture Act ............................... 66
Section 1206. Reference in Securities to Supplemental Indentures ................ 66
Section 1207. Modification Without Supplemental Indenture ....................... 67
ARTICLE THIRTEEN Meetings of Holders; Action Without Meeting ..................... 67
Section 1301. Purposes for Which Meetings May Be Called ......................... 67
Section 1302. Call, Notice and Place of Meetings ................................ 67
Section 1303. Persons Entitled to Vote at Meetings .............................. 68
Section 1304. Quorum; Action .................................................... 68
Section 1305. Attendance at Meetings; Determination of Voting Rights; Conduct
and Adjournment of Meetings ....................................... 69
Section 1306. Counting Votes and Recording Action of Meetings ................... 70
Section 1307. Action Without Meeting ............................................ 70
ARTICLE FOURTEEN Immunity of Incorporators, Stockholders, Officers and Directors . 70
Section 1401. Liability Solely Corporate ........................................ 70
</TABLE>
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NICE-SYSTEMS LTD.
TO
_________________, as Trustee
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of __________ __, ____
<TABLE>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310 (a)(1) ...................................................... 909
(a)(2) .......................................................909
(a)(3) .......................................................914
(a)(4) ........................................... Not Applicable
(b) ..........................................................908
..............................................................910
Section 311 (a) ..........................................................913
(b) ..........................................................913
(c) ..........................................................913
Section 312 (a) .........................................................1001
(b) .........................................................1001
(c) .........................................................1001
Section 313 (a) .........................................................1002
(b) .........................................................1002
(c) .........................................................1002
Section 314 (a) .........................................................1002
(a)(4) .......................................................606
(b) ...............................................Not Applicable
(c)(1) .......................................................102
(c)(2) .......................................................102
(c)(3) ............................................Not Applicable
(d) ...............................................Not Applicable
(e) ..........................................................102
Section 315 (a) ..........................................................901
..............................................................903
(b) ..........................................................902
(c) ..........................................................901
(d) ..........................................................901
(e) ..........................................................814
Section 316 (a) ..........................................................812
..............................................................813
(a)(1)(A) ....................................................802
..............................................................812
(a)(1)(B) ....................................................813
(a)(2) ............................................Not Applicable
(b) ..........................................................808
Section 317 (a)(1) .......................................................803
(a)(2) .......................................................804
(b) ..........................................................603
Section 318 (a) ..........................................................107
</TABLE>
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INDENTURE, dated as of ______ __, ____between NICE-SYSTEMS LTD., a company
limited by shares organized under the laws of the State of Israel (herein
called the "Company"), having its principal office at 0 Xxxxxxx Xxxxxx, X.X.
Xxx 000, 00000 Xx'xxxxx, Xxxxxx and ___________, a [________________ banking
corporation] [national banking association], having its principal corporate
trust office at _________, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities") in an unlimited aggregate principal amount, to be issued from
time to time in one or more series as contemplated herein; and all acts
necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been performed.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires, capitalized terms used herein shall
have the meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
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 terms used herein without definition which 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 generally accepted accounting
principles in Israel, 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 accounting
principles as are generally accepted in Israel at the date of such
computation or, at the election of the Company from time to time, at the
date of the
execution and delivery of this Indenture; provided, however, that in
determining generally accepted accounting principles applicable to the
Company, the Company shall, to the extent required, conform to any order,
rule or regulation of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the Company;
(d) any reference to an "Article" or a "Section" refers to an Article or
a Section, as the case may be, of this Indenture; and
(e) 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.
Certain terms, used principally in Article Nine, are defined in that
Article.
"ACT," when used with respect to any Holder of a Security, has the meaning
specified in Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts that may be payable with
respect to Securities of one or more series or Tranches as may be provided
pursuant to Section 301(z).
"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 through one or
more intermediaries, whether through the ownership of voting securities, by
contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person (other than the Company or an
Affiliate of the Company) authorized by the Trustee pursuant to Section 915 to
act on behalf of the Trustee to authenticate one or more series of Securities
or Tranche thereof.
"AUTHORIZED OFFICER" means the Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer, any director or company
secretary, any authorized attorney or any other officer or agent of the Company
duly authorized by a Board Resolution to act on behalf of the Company in
respect of matters relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any committee thereof duly authorized to act in respect of matters relating to
this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY," when used with respect to a Place of Payment or any other
particular location specified in the Securities or this Indenture, means any
day, other than a
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Saturday or Sunday, which is not a day on which banking institutions or trust
companies in such Place of Payment or other location are generally authorized or
required by law, regulation or executive order to remain closed, except as may
be otherwise specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body, if any, performing
such duties at such time.
"COMPANY" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by an Authorized Officer and delivered to the
Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution and delivery of this Indenture is located
at _________.
"CORPORATION" means a corporation, association, company, limited liability
company, partnership, joint stock company, business or statutory trust or other
business entity, and references to "corporate" and other derivations of
"corporation" herein shall be deemed to include appropriate derivations of such
entities.
"DEPOSITARY" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
clearing agency registered under the Exchange Act specified for that purpose as
contemplated by Section 301.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DISCOUNT SECURITY" means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 802. "Interest" with
respect to a Discount Security means interest, if any, borne by such Security at
a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars, Government
Obligations; or
3
(b) with respect to Securities denominated in a currency other than
Dollars or in a composite currency, such other obligations or instruments
as shall be specified with respect to such Securities, as contemplated by
Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"GLOBAL SECURITY" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 202 (or such
additional or other legend or legends as may be specified as contemplated by
Section 301 for such Securities).
"GOVERNMENTAL AUTHORITY" means the government of any country or state or
of any county, municipality or other political subdivision of any of the
foregoing, or any department, agency, authority or other instrumentality of any
of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States and entitled
to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in clause
(a) above or in any specific interest or principal payments due in respect
thereof; provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or trust company
(which may include the Trustee or any Paying Agent) subject to Federal or
State supervision or examination with a combined capital and surplus of at
least $50,000,000; and provided, further, that except as may be otherwise
required by law, such custodian shall be obligated to pay to the holders
of such certificates, depositary receipts or other instruments the full
amount received by such custodian in respect of such obligations or
specific payments and shall not be permitted to make any deduction
therefrom.
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
"INDENTURE" means this instrument as originally executed and delivered and
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Indenture and such supplemental
indenture, respectively, and shall include the terms of a particular series of
Securities established as contemplated by Section 301.
"INTEREST PAYMENT DATE," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
4
"JUDGMENT CURRENCY" has the meaning specified in Section 114(c).
"JURISDICTION OF INCORPORATION" shall mean each jurisdiction in which the
Company is incorporated or organized.
"MATURITY," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as provided in such Security or in this Indenture, whether at the
Stated Maturity, by declaration of acceleration, upon call for redemption or
otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized
Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company or other counsel reasonably acceptable to the Trustee.
"OUTSTANDING," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled or delivered to the Security
Registrar for cancellation;
(b) Securities deemed to have been paid in accordance with Section 701;
and
(c) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are held by a bona
fide purchaser or purchasers in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or
whether or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
(unless the Company, any such obligors and any such Affiliates own all
Securities Outstanding under this Indenture, or (except for the purposes
of actions to be taken by Holders of (i) more than one series voting as a
class under Section 812 or (ii) more than one series or more than one
Tranche, as the case may be, voting as a class under Section 1202) all
Outstanding Securities of each series and each Tranche with respect to
which such request, demand, authorization, direction, notice, consent or
waiver is required, as the case may be), shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which a
Responsible Officer of the
5
Trustee actually knows to be so owned shall be so disregarded; provided,
however, that Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other
obligor;
(y) the principal amount of a Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 802; and
(z) the principal amount of any Security which is denominated in a
currency other than Dollars or in a composite currency that shall be
deemed to be Outstanding for such purposes shall be the amount of Dollars
which could have been purchased by the principal amount of such currency
or composite currency evidenced by such Security, in each case certified
to the Trustee in an Officer's Certificate, based (i) on the average of
the mean of the buying and selling spot rates quoted by three banks which
are members of the New York Clearing House Association selected by the
Company in effect at 11:00 a.m. (New York time) in The City of New York on
the fifth Business Day preceding any such determination or (ii) if on such
fifth Business Day it shall not be possible or practicable to obtain such
quotations from three such banks, on such other quotations or alternative
methods of determination which shall be as consistent as practicable with
the method set forth in (i) above;
provided, further, that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company, authorized by the
Company to pay the principal of and premium, if any, or interest, if any, on
any Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities of a series from time
to time, any or all of the specific terms of which Securities, including
without limitation the rate or rates of interest, if any, thereon, the Stated
Maturity or Maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents from time to
time subsequent to the initial request for the authentication and delivery of
such Securities by the Trustee, as contemplated in Section 301 and clause (b)
of Section 303.
"PERSON" means any individual, corporation, joint venture, trust, limited
liability partnership or other unincorporated organization or any Governmental
Authority.
"PLACE OF PAYMENT," when used with respect to the Securities of any
series, or Tranche thereof, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 602, principal of and
premium, if any, interest, if any, and Additional Amounts, if any, on the
Securities of such series or Tranche are payable.
6
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to the extent
lawful) to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"REDEMPTION DATE," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"REDEMPTION PRICE," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture,
exclusive of accrued and unpaid interest.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 312.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
Vice President, Assistant Vice President, Trust Officer or other officer of the
Trustee who, in the case of each of the foregoing, is assigned by the Trustee
to its corporate trust department responsible for the administration of this
Indenture that is located in the Corporate Trust Office.
"SECURITIES" has the meaning stated in the first recital of this Indenture
and more particularly means any securities authenticated and delivered under
this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"STATED INTEREST RATE" means a rate (whether fixed or variable) at which
an obligation by its terms is stated to bear simple interest. Any calculation
or other determination to be made under this Indenture by reference to the
Stated Interest Rate on a Security shall be made without regard to the
effective interest cost to the Company of such Security and without regard to
the Stated Interest Rate on, or the effective cost to the Company of, any other
indebtedness in respect of which the Company's obligations are evidenced or
secured in whole or in part by such Security.
"STATED MATURITY," when used with respect to any obligation or any
installment of principal thereof or interest thereon, means the date on which
the principal of such obligation or such installment of principal or interest is
stated to be due and payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension); provided that, with regard to
any installment of interest, Stated Maturity shall not include any date as to
which the Company shall have elected to extend the interest payment periods or
defer the payment of interest in accordance with Section 311.
7
"SUBSIDIARY" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock (or other
interests) of a corporation having voting power for the election of directors,
managers or trustees thereof, whether at all times or only so long as no senior
class of stock (or other interests) has such voting power by reason of any
contingency.
"TRANCHE" means a group of Securities which (a) are of the same series and
(b) have identical terms except as to principal amount and/or date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture Act of
1939, as amended, or any successor statute, as in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such with respect
to one or more series of Securities pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include each Person who
is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series.
"UNITED STATES" means the United States of America, its territories, its
possessions and other areas subject to its political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate stating that in the
opinion of the Person signing such Officer's Certificate all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action (including any covenants compliance with which constitutes a condition
precedent) have been complied with and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or opinion has
read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
8
(c) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such Person, such
condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE
Any certificate or opinion of an officer of the Company 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 officer's certificate or opinion are
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous. In addition, any Opinion of Counsel may be based (without
further examination or investigation), insofar as it relates to or is dependent
upon matters covered in an Opinion of Counsel rendered by other counsel, upon
such other Opinion of Counsel, unless such counsel has actual knowledge that the
Opinion of Counsel rendered by such other counsel with respect to the matters
upon which his Opinion of Counsel may be based as aforesaid are erroneous. If,
in order to render any Opinion of Counsel provided for herein, the signer
thereof shall deem it necessary that additional facts or matters be stated in
any Officer's Certificate provided for herein, then such certificate may state
all such additional facts or matters as the signer of such Opinion of Counsel
may request.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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.
Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates
of the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the
date or dates required with respect to the
9
document or instrument for which it is substituted. Anything in this Indenture
to the contrary notwithstanding, if any such corrective document or instrument
indicates that action has been taken by or at the request of the Company which
could not have been taken had the original document or instrument not contained
such error or omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full force and effect,
except to the extent that such action was a result of willful misconduct or bad
faith. Without limiting the generality of the foregoing, any Securities issued
under the authority of such defective document or instrument shall nevertheless
be the valid obligations of the Company entitled to the benefits of this
Indenture equally and ratably with all other Outstanding Securities, except as
aforesaid.
SECTION 104. ACTS OF HOLDERS
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be made,
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 or, alternatively, may be embodied
in and evidenced by the record of Holders voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders
duly called and held in accordance with the provisions of Article Thirteen,
or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument
or instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security,
shall be sufficient for any purpose of this Indenture and (subject to
Section 901) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section. The record of any meeting of Holders
shall be proved in the manner provided in Section 1306.
(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 or may be proved in any other manner which the Trustee
and the Company deem sufficient. 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.
(c) The principal amount (except as otherwise contemplated in clause (y)
of the first proviso to the definition of Outstanding) and serial numbers
of Securities in registered form held by any Person, and the ownership and
date of holding the same, shall be proved by the Security Register.
10
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(e) Until such time as written instruments shall have been delivered to
the Trustee with respect to the requisite percentage of principal amount
of Securities for the action contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Securities by written notice by
such Holder or any subsequent Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated and
delivered after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any action
taken by such Act of Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so modified as to
conform, in the opinion of the Trustee and the Company, to such action may
be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series or
Tranche.
(g) If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the
Holders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of the Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY
Any request, demand, authorization, direction, notice, consent, election,
waiver or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with, the Trustee by
any Holder or by the Company, or the Company by the Trustee or by any Holder,
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an officer or
other responsible employee of the addressee at the applicable location set forth
below or at such other location as such party may from time to time designate by
written notice, or transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic communications
address as the parties hereto shall from time to time designate by written
notice, or transmitted by certified or registered mail, charges prepaid, to the
11
applicable address set forth below or to such other address as such party may
from time to time designate by written notice:
If to the Trustee, to:
Attention:
Telephone:
Telecopy:
If to the Company, to:
NICE-Systems Ltd.
8 Xxxxxxx Xxxxxx
X.X. Xxx 000
Xx'xxxxx 00000, Xxxxxx
Attention:
Telephone:
Telecopy:
with a copy to:
NICE-Systems Ltd.
000 Xxxxx 00 Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be deemed to have been made,
given, furnished and filed if personally delivered, on the date of delivery, if
transmitted by facsimile transmission or other direct written electronic means,
on the date of receipt, and if transmitted by certified or registered mail, on
the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER
Except as otherwise expressly provided herein or specified as contemplated
in Section 301 with respect to the Securities of any series or any Tranche
thereof, where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to Holders if in
writing and mailed, first-class postage prepaid, to each Holder affected by
such event, at the address of such Holder as it appears in the Security
Register, not later than the latest date, if any, and not earlier than the
earliest date, if any, prescribed for the giving of such notice.
12
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice to Holders by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a 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.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT
If (a) any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the provisions of the Trust
Indenture Act, such other provision shall control; and (b) any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust Indenture Act shall
control unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS
The Article and Section headings in this Indenture 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 Company and Trustee
shall bind their respective successors and assigns, whether so expressed or
not.
SECTION 110. SEPARABILITY CLAUSE
In case any provision in this Indenture or the Securities shall be held to
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
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, nothing in this Indenture or the Securities, express
or implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
13
SECTION 112. GOVERNING LAW
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York (including without limitation
Section 5-1401 of the New York General Obligations Law or any successor to such
statute); provided, however, that all matters governing the authorization by
the Company of this Indenture and the Securities and corporate existence of the
Company will be governed by, and construed in accordance with, the laws of the
jurisdiction in which the Company is incorporated or formed.
SECTION 113. LEGAL HOLIDAYS
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities, other than a provision in the Securities of any series, or any
Tranche thereof, or in the indenture supplemental hereto, Board Resolution or
the Officer's Certificate which establishes the terms of the Securities of such
series or Tranche, which specifically states that such provision shall apply in
lieu of this Section) payment of interest and Additional Amounts, if any, 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, and in the same amount, as if made on
the Interest Payment Date or Redemption Date, or at the Stated Maturity, as the
case may be, and, if such payment is made or duly provided for on such Business
Day, no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
SECTION 114. CONSENT TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE;
JUDGMENT CURRENCY; WAIVER OF IMMUNITIES
(a) Consent to Jurisdiction. The Company irrevocably consents to the
nonexclusive jurisdiction of any court of the State of New York or any
United States Federal court sitting, in each case, in the Borough of
Manhattan, Xxx Xxxx xx Xxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx of America, and
any appellate court from any thereof in any suit, action or proceeding
that may be brought in connection with this Indenture or the Securities,
and waives any immunity from the jurisdiction of such courts. The Company
irrevocably waives, to the fullest extent permitted by law, any objection
to any such suit, action or proceeding that may be brought in such courts
whether on the grounds of venue, residence or domicile or on the ground
that any such suit, action or proceeding has been brought in an
inconvenient forum. The Company agrees, to the fullest extent that it
lawfully may do so, that final judgment in any such suit, action or
proceeding brought in such a court shall be conclusive and binding upon
the Company, and waives, to the fullest extent permitted by law, any
objection to the enforcement by any competent court in the Jurisdiction of
Incorporation of judgments validly obtained in any such court in New York
on the basis of such suit, action or proceeding; provided, however, that
the Company does not waive, and the foregoing provisions of this sentence
shall not constitute or be deemed to constitute a waiver of, (i) any right
to appeal any such judgment, to seek any stay or otherwise to seek
reconsideration or review of any such
14
judgment (ii) any stay of execution or levy pending an appeal from, or a
suit, action or proceeding for reconsideration of, any such judgment, or
(iii) any other right or remedy of the Company to the extent not expressly
waived in accordance with this Section 114.
(b) Appointment of Agent for Service. The Company has designated and
appointed __________________________________, as its authorized agent upon
which process may be served in any suit or proceeding in any Federal or
State court in the Borough of Manhattan, The City of New York arising out
of or relating to the Securities or this Indenture, but for that purpose
only, and agrees that service of process upon said agent shall be deemed
in every respect effective service of process upon it in any such suit or
proceeding in any Federal or State court in the Borough of Manhattan, The
City of New York. Such appointment shall be irrevocable so long as any of
the Securities remain Outstanding until the appointment of a successor by
the Company and such successor's acceptance of such appointment. Upon such
acceptance, the Company shall notify the Trustee of the name and address
of such successor. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and
appointment of said agent in full force and effect so long as any of the
Securities shall be Outstanding. The Trustee shall not be obligated and
shall have no responsibility with respect to any failure by the Company to
take any such action.
Nothing in this Section shall affect the right of the Trustee or any
Holder of any Security to serve process in any manner permitted by applicable
law or limit the right of the Trustee or any Holder of any Security to bring
proceedings against the Company in the courts of any other jurisdiction or
jurisdictions.
(c) Judgment Currency. The Company agrees, to the fullest extent that
it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due
in respect of the principal of, or premium or interest, if any, on the
Securities of any series from the Required Currency into a currency in
which a judgment will be rendered (the "Judgment Currency"), the rate of
exchange used shall be the rate at which, in accordance with normal banking
procedures, the Trustee could purchase the Required Currency with the
Judgment Currency at the date of payment and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in respect of
such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering the amount, if any by which
actual receipt shall fall short of the full amount of the Required Currency
so expressed to be payable and (iii) shall not be affected by judgment
being obtained for any other sum due under this Indenture.
(d) Waiver of Immunities. To the extent that the Company or any of its
properties, assets or revenues may have or may hereafter become entitled
to, or have
15
attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from legal action, suit or proceeding, from the giving of any
relief in any thereof, from set-off or counterclaim, from the jurisdiction
of any court, from service of process, from attachment upon or prior to
judgment, from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving
of any relief or for the enforcement of any judgment, in any jurisdiction
in which proceedings may at any time be commenced, with respect to its
obligations, liabilities or any other matter under or arising out of or in
connection with this Indenture or the Securities issued hereunder, the
Company hereby irrevocably and unconditionally waives and agrees not to
plead or claim, any such immunity and consents to such relief and
enforcement. Nothing in this paragraph shall be deemed to waive any defense
(other than such immunity) available to the Company.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY
The definitive Securities of each series shall be in substantially the
form or forms thereof established in the indenture supplemental hereto
establishing such series or in a Board Resolution establishing such series, or
in an Officer's Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depositary therefor as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof. If the form or forms of Securities of
any series are established in a Board Resolution or in an Officer's Certificate
pursuant to a supplemental indenture or a Board Resolution, such Board
Resolution and Officer's Certificate, if any, shall be delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303
for the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 301 or clause (g) of
Section 1201, the Securities of each series shall be issuable in registered
form without coupons. The definitive Securities shall be produced in such
manner as shall be determined by the Person executing such Securities, as
evidenced by their execution thereof.
SECTION 202. FORM OF LEGEND FOR GLOBAL SECURITIES.
Unless otherwise provided with respect to a series of Securities as
contemplated in Section 301(r), any Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for
a Security
16
registered, and no transfer of this Security in whole or in part may be
registered in the name of any Person other than such Depositary or a
nominee thereof, except in the limited circumstances described in the
Indenture."
SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The Trustee's certificate of authentication shall be in substantially the
form set forth below:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
----------------------------------- ,
as Trustee
By: ---------------------------------
Authorized [Signatory] [Officer]
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Subject to the
penultimate paragraph of this Section, prior to the authentication and delivery
of Securities of any series there shall be established by specification in a
supplemental indenture or in a Board Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which shall distinguish
the Securities of such series from Securities of all other series);
(b) any limit upon the aggregate principal amount of the Securities of
such series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of such
series pursuant to Xxxxxxx 000, 000, 000, 000 xx 0000 and, except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other than the Persons in whose
names such Securities (or one or more
17
Predecessor Securities) are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal of the Securities of such
series, or any Tranche thereof, is payable or any formulary or other
method or other means by which such date or dates shall be determined, by
reference to an index or other fact or event ascertainable outside of this
Indenture or otherwise (without regard to any provisions for redemption,
prepayment, declaration of acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such series, or any
Tranche thereof, shall bear interest, if any (including the rate or rates
at which overdue principal shall bear interest, if different from the rate
or rates at which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or other method or other
means by which such rate or rates shall be determined, by reference to an
index or other fact or event ascertainable outside of this Indenture or
otherwise; 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 Date, if any, for the interest payable on such Securities on
any Interest Payment Date; the right of the Company, if any, to extend the
interest payment periods and the duration of any such extension, or to
defer payment of interest, each as contemplated by Section 311; and the
basis of computation of interest, if other than as provided in Section 310;
(f) the place or places at which or methods by which (1) the principal
of and premium, if any, and interest, if any, on Securities of such
series, or any Tranche thereof, shall be payable, (2) registration of
transfer of Securities of such series, or any Tranche thereof, may be
effected, (3) exchanges of Securities of such series, or any Tranche
thereof, may be effected and (4) notices and demands to or upon the
Company in respect of the Securities of such series, or any Tranche
thereof, and this Indenture may be served; the Security Registrar and any
Paying Agent or Agents for such series or Tranche; and if such is the
case, that the principal of such Securities shall be payable without
presentment or surrender thereof;
(g) the period or periods within which, or the date or dates on which,
the price or prices at which and the terms and conditions upon which the
Securities of such series, or any Tranche thereof, may be redeemed, in
whole or in part, at the option of the Company and any restrictions on
such redemptions, including but not limited to a restriction on a partial
redemption by the Company of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities from any national
exchange;
(h) the obligation or obligations, if any, of the Company to redeem or
purchase or repay the Securities of such series, or any Tranche thereof,
pursuant to any sinking fund or other mandatory redemption provisions or
at the option of a Holder thereof and the period or periods within which
or the date or dates on which, the price or prices at which and the terms
and conditions upon which such Securities shall be redeemed or purchased
or repaid, in whole or in part, pursuant to such obligation, and
18
applicable exceptions to the requirements of Section 404 in the case of
mandatory redemption or redemption or repayment at the option of the
Holder;
(i) the denominations in which Securities of such series, or any Tranche
thereof, shall be issuable if other than denominations of $1,000 and any
integral multiple thereof;
(j) the currency or currencies, including composite currencies, in which
payment of the principal of and premium, if any, and interest, if any, on
the Securities of such series, or any Tranche thereof, shall be payable
(if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if any, on the
Securities of such series, or any Tranche thereof, are to be payable, at
the election of the Company or a Holder thereof, in a coin or currency
other than that in which the Securities are stated to be payable, the
period or periods within which, and the terms and conditions upon which,
such election may be made;
(l) if the principal of or premium, if any, or interest, if any, on the
Securities of such series, or any Tranche thereof, are to be payable, or
are to be payable at the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such securities or
other property, or the formulary or other method or other means by which
such amount shall be determined, and the period or periods within which,
and the terms and conditions upon which, any such election may be made;
(m) if the amount payable in respect of principal of or premium, if any,
or interest, if any, on the Securities of such series, or any Tranche
thereof, may be determined with reference to an index or other fact or
event ascertainable outside of this Indenture, the manner in which such
amounts shall be determined to the extent not established pursuant to
clause (e) of this paragraph;
(n) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified in Section
801, with respect to the Securities of such series, and any covenants of
the Company for the benefit of the Holders of the Securities of such
series, or any Tranche thereof, in addition to those set forth in Article
Six or any exceptions to those set forth in Article Six;
(p) the terms, if any, pursuant to which the Securities of such series,
or any Tranche thereof, may be converted into or exchanged for ordinary
shares or other securities of the Company or any other Person;
(q) the obligations or instruments, if any, which shall be considered to
be Eligible Obligations in respect of the Securities of such series, or
any Tranche thereof, denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative provisions for the
reinstatement of the Company's indebtedness
19
in respect of such Securities after the satisfaction and discharge thereof
as provided in Section 701;
(r) if applicable, that any Securities of such series, or any Tranche
thereof, shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in
Section 202 and any circumstances in addition to or in lieu of those set
forth in Section 305 in which any such Global Security may be exchanged in
whole or in part for Securities registered, and any transfer of such
Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a
nominee thereof and any other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche thereof, are to be
issuable as bearer securities, any and all matters incidental thereto
which are not specifically addressed in a supplemental indenture as
contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of this
paragraph, any limitations on the rights of the Holders of the Securities
of such Series, or any Tranche thereof, to transfer or exchange such
Securities or to obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer or exchange
of Securities of such series, or any Tranche thereof, the amount or terms
thereof;
(u) any exceptions to Section 113, or variation in the definition of
Business Day, with respect to the Securities of such series or any Tranche
thereof;
(v) any collateral, security, insurance, guarantee or assurance for the
Securities of such series;
(w) any rights or duties of another Person to assume the obligations of
the Company with respect to the Securities of such series (whether as
joint obligor, primary obligor, secondary obligor or substitute obligor)
and any rights or duties to discharge and release any obligor with respect
to the Securities of such series or the Indenture to the extent related to
such series;
(x) any rights to change or eliminate any provision of this Indenture or
to add any new provision to this Indenture (by supplemental indenture or
otherwise) without the consent of the Holders of the Securities of such
series, or with the consent of the Holders of the Securities of such
series as specified for such series or any Tranche thereof;
(y) the agent of the Company to receive service of process in the State
of New York, if other than ________ in New York City;
(z) the terms relating to any Additional Amounts that may be payable in
certain circumstances with respect to the Securities of such series or any
Tranche thereof; and
20
(aa) any other terms of the Securities of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
With respect to Securities of a series subject to a Periodic Offering, the
indenture supplemental hereto or the Board Resolution which establishes such
series, or the Officer's Certificate pursuant to such supplemental indenture or
Board Resolution, as the case may be, may provide general terms or parameters
for Securities of such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall be specified in a
Company Order or that such terms shall be determined by the Company or its
agents in accordance with procedures specified in a Company Order as
contemplated by clause (b) of Section 303.
Unless otherwise provided with respect to a series of Securities as
contemplated in Section 301(b), the aggregate principal amount of a series of
Securities may be increased from time to time and additional Securities of such
series may be issued up to any maximum aggregate principal amount authorized
with respect to such series as increased.
SECTION 302. DENOMINATIONS
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, the Securities of each series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, the Securities shall be
executed on behalf of the Company by an Authorized Officer and may have the
corporate seal of the Company affixed thereto or reproduced thereon attested by
any other Authorized Officer or by the Secretary or an Assistant Secretary of
the Company. The signature of any or all of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at the time of execution Authorized Officers or the Secretary or an
Assistant Secretary of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
The Trustee shall authenticate and deliver Securities of a series, for
original issue, at one time or from time to time in accordance with the Company
Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or forms and
terms of such series, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery of such
Securities, and to the extent that the terms of such Securities shall not
have been established in an indenture supplemental hereto or in a Board
Resolution, or in an
21
Officer's Certificate pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Sections 201 and 301, either (i)
establishing such terms or (ii) in the case of Securities of a series
subject to a Periodic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which procedures may
provide, to the extent acceptable to the Trustee, for authentication and
delivery pursuant to oral or electronic instructions from the Company or any
agent or agents thereof, which oral instructions are to be promptly
confirmed electronically or in writing), in either case in accordance with
the instrument or instruments delivered pursuant to clause (a) above;
(c) the Securities of such series, each executed on behalf of the
Company by an Authorized Officer;
(d) Opinion or Opinions of Counsel to the effect that:
(i) the form or forms of such Securities have been duly authorized by
the Company and have been established in conformity with the provisions
of this Indenture;
(ii) the terms of such Securities have been duly authorized by the
Company and have been established in conformity with the provisions of
this Indenture; and
(iii) when such Securities shall have been authenticated and
delivered by the Trustee and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion of
Counsel, such Securities will have been duly issued under this
Indenture and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by this Indenture, and
enforceable in accordance with their terms, subject, as to enforcement,
to laws relating to or affecting generally the enforcement of
mortgagees' and other creditors' rights, including, without limitation,
bankruptcy, insolvency, reorganization, receivership, moratorium and
other laws affecting the rights and remedies of creditors and
mortgagees' generally and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or
at law);
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of such
Securities (provided that such Opinion of Counsel addresses the authentication
and delivery of all Securities of such series) and that in lieu of the opinions
described in clauses (ii) and (iii) above Counsel may opine that:
(iv) when the terms of such Securities shall have been established
pursuant to a Company Order or Orders or pursuant to such procedures
(acceptable to the Trustee) as may be specified from time to time by a
Company Order or Orders, all as contemplated by and in accordance with
the instrument or instruments delivered pursuant to clause (a) above,
such terms will have been
22
duly authorized by the Company and will have been established in
conformity with the provisions of this Indenture; and
(e) such Securities, when (1) executed by the Company, (2) authenticated
and delivered by the Trustee in accordance with this Indenture, (3) issued
and delivered by the Company and (4) paid for, all as contemplated by and
in accordance with the aforesaid Company Order or Orders, as the case may
be, will have been duly issued under this Indenture and will constitute
valid and legally binding obligations of the Company, entitled to the
benefits provided by the Indenture, and enforceable in accordance with
their terms, subject, as to enforcement, to laws relating to or affecting
generally the enforcement of mortgagees' and other creditors' rights,
including, without limitation, bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies
of creditors and mortgagees' generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law).
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form, terms thereof and the legality, validity, binding
effect and enforceability thereof, and compliance of the authentication and
delivery thereof with the terms and conditions of this Indenture, upon the
Opinion of Counsel and other documents delivered pursuant to Sections 201 and
301 and this Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such opinion or
other documents have been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to assume that
the Company's instructions to authenticate and deliver such Securities do not
violate any applicable law or any applicable rule, regulation or order of any
Governmental Authority having jurisdiction over the Company.
If the form or terms of the Securities of any series have been established
by or pursuant to a Board Resolution or an Officer's Certificate as permitted
by Sections 201 or 301, the Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this Indenture will
materially or adversely affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, each Security shall be dated
the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, no Security shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee or an
Authenticating Agent by manual signature, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the
23
foregoing, if any Security shall have been authenticated and delivered hereunder
to the Company, or any Person acting on its behalf, but shall never have been
issued and sold by the Company, and the Company shall deliver such Security to
the Security Registrar for cancellation as provided in Section 309 together with
a written statement (which need not comply with Section 102 and need not be
accompanied by an Officer's Certificate and an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES
Pending the preparation of definitive Securities of any series or any
Tranche thereof, the Company may execute, and upon a Company Order the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite specific
redemption, sinking fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with respect to
the Securities of any series, or any Tranche thereof, after the preparation of
definitive Securities of such series or Tranche, the temporary Securities of
such series or Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche upon surrender of
such temporary Securities at the office or agency of the Company maintained
pursuant to Section 602 in a Place of Payment for such Securities. Upon such
surrender of temporary Securities for such exchange, the Company shall, except
as aforesaid, execute and the Trustee shall authenticate and deliver in
exchange therefor definitive Securities of the same series and Tranche of
authorized denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche and of like tenor
authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, the Company shall cause to be kept in one of the
offices designated pursuant to Section 602, with respect to the Securities of
each series, or any Tranche thereof, a register (the register kept in
accordance with this Section being referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities of such series or Tranche and
the registration of transfer thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of each series on a
consolidated basis, and such Person is referred to herein, with respect to such
series, as the "Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more of its offices or an
office of any Affiliate as an office in
24
which a register with respect to the Securities of one or more series, or any
Tranche or Tranches thereof, shall be maintained, and the Company may designate
itself or any Affiliate the Security Registrar with respect to one or more of
such series. The Security Register shall be open for inspection by the Trustee
and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, upon surrender for
registration of transfer of any Security of such series or Tranche at the office
or agency of the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, any Security of such
series or Tranche may be exchanged at the option of the Holder, for one or more
new Securities of the same series and Tranche, of authorized denominations and
of like tenor and aggregate principal amount, upon surrender of the Securities
to be exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
All Securities delivered upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the Security
Registrar, as the case may be, duly executed by the Holder thereof or his
attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301, with respect to
Securities of any series, or any Tranche thereof, no service charge shall be
made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
304, 406 or 1205 not involving any transfer.
Unless otherwise specified as contemplated by Section 301, with respect to
Securities of any series, or any Tranche thereof, the Company shall not be
required to execute or to provide for the registration of transfer of or the
exchange of (a) Securities of any series, or any Tranche thereof, during a
period of 15 days immediately preceding the date notice is to be given
identifying the serial numbers of the Securities of such series or Tranche
called for redemption or (b) any Security so selected for redemption in whole
or in part, except the unredeemed portion of any Security being redeemed in
part.
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Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a custodian therefor, and
each such Global Security shall constitute a single Security for all purposes
of this Indenture. Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, no Global Security shall be registered for
transfer or exchange, or authenticated or delivered, pursuant to this Section
305 or Sections 304, 306, 1206 or 406 in the name of a Person other than the
Depositary for such Security or its nominee until (i) the Depositary with
respect to a Global Security notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or the Depositary
ceases to be a clearing agency registered under the Exchange Act and, in either
such event, the Company notifies the Trustee that it is unable to appoint a
successor Depositary within 90 days of any such event, (ii) the Company
executes and delivers to the Trustee a Company Order that such Global Security
shall be so transferable and exchangeable or (iii) there shall have occurred
and be continuing an Event of Default with respect to the Securities of such
series. Upon the occurrence in respect of any Global Security of any series of
any one or more of the conditions specified in clauses (i), (ii) or (iii) of
the preceding sentence or such other conditions as may be specified as
contemplated by Section 301 for such series, such Global Security may be
registered for transfer or exchange for Securities registered in the names of,
or authenticated and delivered to, such Persons as the Depositary with respect
to such series shall direct.
Except as provided in the preceding paragraph, any Security authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, any Global Security or any portion thereof, whether pursuant to this
Section, Section 304, 306, 1206 or 406 or otherwise, shall also be a Global
Security and bear the legend specified in Section 202. Notwithstanding any other
provision of this Indenture, a Global Security may not be transferred except as
a whole by the Depositary for such Global Security to a nominee of such
Depositary or to another Depositary or a nominee thereof or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or to
another Depositary or a nominee thereof.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
If any mutilated Security is surrendered to the Security Registrar, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and Tranche, and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to
their satisfaction of the ownership of and the destruction, loss or theft of
any Security and (b) such security or indemnity as may be reasonably required
by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security is held
by a Person purporting to be the owner of such Security, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
26
Notwithstanding the foregoing, in case any such mutilated, destroyed, lost
or stolen Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new Security shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
Unless otherwise specified as contemplated by Section 301 with respect to
the Securities of any series, or any Tranche thereof, interest on any Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.
Subject to Section 311, any interest on any Security of any series which
is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the related Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a date (herein called a "Special Record Date") for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the date
of the proposed payment, and at the same time the Company 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 on or prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to
27
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall promptly 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
Securities of such series at the address of such Holder as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date.
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and premium, if
any, and (subject to Sections 305 and 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Members of, or participants in, the Depositary ("Participants") shall have
no rights under this Indenture with respect to any Global Securities held on
their behalf of the Depositary, or the Trustee as its custodian, or under the
Global Securities, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of Global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent, any Security Registrar or any other agent of the Company or any
agent of the Trustee shall have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests of a Security in the form of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. The Company, the Trustee, any Paying Agent and any Security Registrar
and any other agent of the Company and any agent of the Trustee shall be
entitled to deal with any depositary (including any Depositary), and any nominee
thereof, that is the Holder of any such Global Security for all purposes of this
Indenture relating to such Global Security
28
(including the payment of principal, premium, if any, and interest and
Additional Amounts, if any, and the giving of instructions or directions by or
to the owner or holder of a beneficial ownership interest in such Global
Security) as the sole Holder of such Global Security and shall have no
obligations to the beneficial owners thereof. None of the Company, the Trustee,
any Paying Agent, any Security Registrar or any other agent of the Company or
any agent of the Trustee shall have any responsibility or liability for any acts
or omissions of any such depositary with respect to such Global Security, for
the records of any such depositary, including records in respect of beneficial
ownership interests in respect of any such Global Security, for any transactions
between such depositary and any participant in such depositary or between or
among any such depositary, any such participant and/or any holder or owner of a
beneficial interest in such Global Security or for any transfers of beneficial
interests in any such Global Security.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect
to such Global Security or impair, as between such depositary and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depositary as a Holder
of such Global Security.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Security Registrar, be delivered to the Security Registrar and, if not
theretofore canceled, shall be promptly canceled by the Security Registrar. The
Company may at any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be promptly canceled by
the Security Registrar. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Security Registrar shall be disposed of in accordance with the customary
practices of the Security Registrar at the time in effect, and the Security
Registrar shall not be required to destroy any such certificates. The Security
Registrar shall promptly deliver a certificate of disposition to the Trustee
and the Company unless, by a Company Order, delivered to the Security Registrar
and Trustee, the Company shall direct that canceled Securities be returned to
it. The Security Registrar shall promptly deliver evidence of any cancellation
of a Security in accordance with this Section 309 to the Trustee and the
Company.
SECTION 310. COMPUTATION OF INTEREST
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or any Tranche thereof, interest on the Securities of
each series shall be computed on the basis of a 360-day year consisting of
twelve 30-day months and for any period shorter than a full month on the basis
of the actual number of days elapsed within any such period.
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SECTION 311. EXTENSION OF INTEREST PAYMENT, DEFERRAL OF INTEREST PAYMENT
The Company shall have the right at any time, so long as no Event of
Default shall have occurred and be continuing with respect to the Securities of
any series hereunder, to extend interest payment periods or to defer the
payment of interest on all Securities of one or more series, or Tranches
thereof, if so specified as contemplated by Section 301 with respect to such
Securities and upon such terms as may be specified as contemplated by Section
301 with respect to such Securities.
SECTION 312. PAYMENT TO BE IN PROPER CURRENCY
In the case of the Securities of any series, or any Tranche thereof,
denominated in any currency other than Dollars or in a composite currency (the
"Required Currency"), except as otherwise specified with respect to such
Securities as contemplated by Section 301, the obligation of the Company to make
any payment of the principal thereof, or the premium or interest thereon, shall
not be discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and payable, and in
no circumstances shall the Trustee be liable therefor except in the case of its
negligence or willful misconduct.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for
Securities of such series or Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE
The election of the Company to redeem any Securities shall be evidenced by
an Officer's Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such Redemption
Date and of the principal amount of such Securities to be redeemed. In the case
of any redemption of Securities (a) prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in
this Indenture or (b) pursuant to an election of the Company which is subject
to a restriction or condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction or condition.
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SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED
If less than all the Securities of any series, or any Tranche thereof, are
to be redeemed, the particular Securities to be redeemed shall be selected by
the Trustee from the Outstanding Securities of such series or Tranche not
previously called for redemption, by such method as shall be provided for any
particular series or Tranche, or, in the absence of any such provision, by such
method as the Trustee shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of such series or Tranche or any
integral multiple thereof) of the principal amount of Securities of such series
or Tranche of a denomination larger than the minimum authorized denomination
for Securities of such series or Tranche; provided, however, that if, as
indicated in an Officer's Certificate, the Company shall have offered to
purchase all or any principal amount of the Securities then Outstanding of any
series, or any Tranche thereof, and less than all of such Securities as to
which such offer was made shall have been tendered to the Company for such
purchase, the Trustee, if so directed by Company Order, shall select for
redemption all or any principal amount of such Securities which have not been
so tendered.
The Trustee shall promptly notify the Company and the Security Registrar
in writing of the Securities selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, notice of redemption shall be given in the manner
provided in Section 106 to the Holders of the Securities to be redeemed not
less than 30 nor more than 60 days prior to the Redemption Date.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, all notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price (if known) or the formula pursuant to which the
Redemption Price is to be determined if the Redemption Price cannot be
determined at the time the notice is given,
(c) if less than all the Securities of any series or Tranche are to be
redeemed, the identification of the particular Securities to be redeemed
and the portion of the principal amount of any Security to be redeemed in
part,
(d) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, and Additional Amounts, if any, to the
Redemption Date, will become
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due and payable upon each such Security to be redeemed and, if applicable,
that interest and Additional Amounts, if any, thereon will cease to accrue
on and after said date,
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price and accrued interest, if any, and
Additional Amounts, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities that such
surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if such is the
case,
(g) the CUSIP, ISIN or other similar numbers, if any, assigned to such
Securities; provided, however, that such notice may state that no
representation is made as to the correctness of CUSIP, ISIN or other
similar numbers, in which case none of the Company, the Trustee or any
agent of the Company or the Trustee shall have any liability in respect of
the use of any CUSIP, ISIN or other similar number or numbers on such
notices, and the redemption of such Securities shall not be affected by
any defect in or omission of such numbers, and
(h) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in accordance
with Section 301, with respect to any notice of redemption of Securities at the
election of the Company, unless, upon the giving of such notice, such
Securities shall be deemed to have been paid in accordance with Section 701,
such notice may state that such redemption shall be conditional upon the
receipt by the Paying Agent or Agents for such Securities, on or prior to the
date fixed for such redemption, of money sufficient to pay the principal of and
premium, if any, and interest, if any, and Additional Amounts, if any, on such
Securities and that if such money shall not have been so received such notice
shall be of no force or effect and the Company shall not be required to redeem
such Securities. In the event that such notice of redemption contains such a
condition and such money is not so received, the redemption shall not be made
and within a reasonable time thereafter notice shall be given, in the manner in
which the notice of redemption was given, that such money was not so received
and such redemption was not required to be made, and the Paying Agent or Agents
for the Securities otherwise to have been redeemed shall promptly return to the
Holders thereof any of such Securities which had been surrendered for payment
upon such redemption.
Notice of redemption of Securities to be redeemed at the election of the
Company, and any notice of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the Company's request, by the
Security Registrar in the name and at the expense of the Company. Notice of any
mandatory redemption of Securities shall be given by the Security Registrar in
the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE
Notice of redemption having been given as aforesaid, and the conditions, if
any, set forth in such notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date (unless,
in the case of an unconditional notice of
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redemption, the Company shall default in the payment of the Redemption Price and
accrued interest and Additional Amounts, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with such notice, such Security
or portion thereof shall be paid by the Company at the Redemption Price,
together with accrued interest and Additional Amounts, if any, to the Redemption
Date; provided, however, that no such surrender shall be a condition to such
payment if so specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise specified as
contemplated by Section 301 with respect to such Security, any installment of
interest on any Security the Stated Maturity of which installment is on or prior
to the Redemption Date shall be payable to the Holder of such Security, or one
or more Predecessor Securities, registered as such at the close of business on
the related Regular Record Date according to the terms of such Security and
subject to the provisions of Section 307.
SECTION 406. SECURITIES REDEEMED IN PART
Upon the surrender of any Security which is to be redeemed only in part at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities of the same series and Tranche, of
any authorized denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE
The provisions of this Article shall be applicable to any sinking fund for
the retirement of the Securities of any series, or any Tranche thereof, except
as otherwise specified as contemplated by Section 301 for Securities of such
series or Tranche.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series, or any Tranche thereof, is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
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SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES
The Company (a) may deliver to the Trustee Outstanding Securities (other
than any previously called for redemption) of a series or Tranche in respect of
which a mandatory sinking fund payment is to be made and (b) may apply as a
credit Securities of such series or Tranche which have been (i) redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities or (ii) repurchased by the Company in the open
market, by tender offer, in the open market or by private agreement, or
otherwise, in each case in satisfaction of all or any part of such mandatory
sinking fund payment with respect to the Securities of such series or Tranche;
provided, however, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been previously so
applied. Securities so applied shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND
Not less than 45 days prior to each sinking fund payment date for the
Securities of any series, or any Tranche thereof, the Company shall deliver to
the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund payment for
such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be made
together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment which is
to be satisfied by the payment of cash; and
(e) the portion, if any, of such aggregate sinking fund payment which is
to be satisfied by delivering and crediting Securities of such series or
Tranche pursuant to Section 502 and stating the basis for such credit and
that such Securities have not previously been so credited, and the Company
shall also deliver to the Trustee any Securities to be so delivered.
If the Company shall have not delivered such Officer's Certificate and, to
the extent applicable, all such Securities, the next succeeding sinking fund
payment for such series or Tranche shall be made entirely in cash in the amount
of the mandatory sinking fund payment. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
403 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 404. Such
notice having been duly
34
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
The Company shall pay the principal of and premium, interest and
Additional Amounts, if any, on the Securities of each series in accordance with
the terms of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY
The Company shall maintain in each Place of Payment for the Securities of
each series, or any Tranche thereof, an office or agency where payment of such
Securities shall be made, where the registration of transfer or exchange of
such Securities may be effected and where notices and demands to or upon the
Company in respect of such Securities and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency and prompt notice to
the Holders of any such change in the manner specified in Section 106. If at
any time the Company shall fail to maintain any such required office or agency
in respect of Securities of any series, or any Tranche thereof, or shall fail
to furnish the Trustee with the address thereof, payment of such Securities
shall be made, registration of transfer or exchange thereof may be effected and
notices and demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time designate one or more other offices
or agencies with respect to the Securities of one or more series, or any
Tranche thereof, for any or all of the foregoing purposes and may from time to
time rescind such designations; provided, however, that, unless otherwise
specified as contemplated by Section 301 with respect to the Securities of such
series or Tranche, no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency for such
purposes in each Place of Payment for such Securities in accordance with the
requirements set forth above. The Company shall give prompt written notice to
the Trustee, and prompt notice to the Holders in the manner specified in
Section 106, of any such designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary notwithstanding, unless otherwise
specified as contemplated by Section 301 for the Securities of any series, any
office or agency required by this Section may be maintained at an office of the
Company or an Affiliate of the Company, in which event the Company or such
Affiliate, as the case may be, shall perform all functions to be performed at
such office or agency.
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SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST
If the Company shall at any time act as its own Paying Agent with respect
to the Securities of any series, or any Tranche thereof, it shall, on or before
each due date of the principal of or premium, interest or Additional Amounts,
if any, on any of such Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal, premium,
interest or Additional Amounts so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided. The Company shall
promptly notify the Trustee of any failure by the Company (or any other obligor
on such Securities) to make any payment of principal of or premium, interest or
Additional Amounts, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, on or before each
due date of the principal of or premium, interest or Additional Amounts, if
any, on such Securities, deposit with such Paying Agents sums sufficient
(without duplication) to pay the principal, premium, interest or Additional
Amounts so becoming due, such sums to be held in trust for the benefit of the
Persons entitled to such principal, premium, interest or Additional Amounts,
and (unless such Paying Agent is the Trustee) the Company shall promptly notify
the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, other than the Company or 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 shall:
(a) hold all sums held by it for the payment of the principal of or
premium, interest or Additional Amounts, if any, on such Securities 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;
(b) give the Trustee notice of any failure by the Company (or any other
obligor upon such Securities) to make any payment of principal of or
premium, interest or Additional Amounts, if any, on such Securities; and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and addresses of the
Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent and, if so
stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
36
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of and premium, interest
or Additional Amounts, if any, on any Security and remaining unclaimed for two
years after such principal or premium, interest or Additional Amounts, if any,
have become due and payable shall to the extent permitted by law be paid to the
Company on Company Request, or, if then held by the Company, shall be
discharged from such trust; and, upon such payment or discharge, the Holder of
such Security shall, as an unsecured general creditor and not as the Holder of
an Outstanding Security, look only to the Company for payment of the amount so
due and payable and remaining unpaid unless the applicable law provides
otherwise, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such payment to the Company, may at the
expense of the Company cause to be mailed, on one occasion only, notice to such
Holder 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 mailing,
any unclaimed balance of such money then remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE
Subject to the rights of the Company under Article Eleven, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its existence as a corporation.
SECTION 605. MAINTENANCE OF PROPERTIES
The Company shall cause (or, with respect to property owned in common with
others, make reasonable effort to cause) all of its properties used or useful
in the conduct of its business to be maintained and kept in good condition,
repair and working order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as,
in the judgment of the Company, may be necessary so that the business carried
on in connection therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from discontinuing, or
causing the discontinuance of, the operation and maintenance of any of its
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than _____ ____ in each year, commencing _______ __, ___, the
Company shall deliver to the Trustee an Officer's Certificate, which need not
comply with Section 102, executed by the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
as to such officer's knowledge of the Company's compliance with all conditions
and covenants under this Indenture, such compliance to be determined without
regard to any period of grace or requirement of notice under this Indenture,
and if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge, and otherwise
complying with the provisions of Section 314(a)(4) of the Trust Indenture Act.
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SECTION 607. WAIVER OF CERTAIN COVENANTS
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in (a) Section 602 or any additional covenant
or restriction specified with respect to the Securities of any series, or any
Tranche thereof, as contemplated by Section 301 or by clause (c) of Section
1201, if before the time for such compliance the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series and
Tranches with respect to which compliance with Section 602 or such additional
covenant or restriction is to be omitted, considered as one class, shall, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition and (b) Section 605 or
Article Eleven if before the time for such compliance the Holders of a majority
in aggregate principal amount of Securities Outstanding under this Indenture
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition; but, in the
case of (a) or (b), no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 608. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
The Company shall file with the Trustee as promptly as possible after the
end of each calendar year (i) a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on
Outstanding Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be relevant
under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE SEVEN
DEFEASANCE; SATISFACTION AND DISCHARGE
SECTION 701. DEFEASANCE
Any Security or Securities, or any portion of the principal amount
thereof, shall be deemed to have been paid for all purposes of this Indenture,
and the entire indebtedness of the Company in respect thereof shall be deemed
to have been satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the Company), in
trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment thereof at
the option of the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or held by
the Trustee or such Paying Agent, shall be sufficient, or
38
(c) a combination of (a) or (b) which shall be sufficient, to pay when
due the principal of and premium, interest and Additional Amounts, if any,
due and to become due on such Securities or portions thereof on or prior to
Maturity; provided, however, that in the case of the provision for payment
or redemption of less than all the Securities of any series or Tranche,
such Securities or portions thereof shall have been selected by the
Security Registrar as provided herein and, in the case of a redemption, the
notice requisite to the validity of such redemption shall have been given
or irrevocable authority shall have been given by the Company to the
Trustee to give such notice, under arrangements satisfactory to the
Trustee; and provided, further, that the Company shall have delivered to
the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the Maturity of
such Securities, a Company Order stating that the money and Eligible
Obligations deposited in accordance with this Section shall be held in
trust, as provided in Section 703; and
(y) if Eligible Obligations shall have been deposited, an Opinion of
Counsel that the obligations so deposited constitute Eligible
Obligations and do not contain provisions permitting the redemption or
other prepayment at the option of the issuer thereof, and an opinion of
an independent public accountant of nationally recognized standing,
selected by the Company, to the effect that the requirements set forth
in clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to the Maturity of
such Securities, an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions thereof will
have been satisfied and discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in accordance
with this Section, together with the documents required by clauses (x), (y) and
(z) above, the Trustee shall, upon receipt of a Company Request, acknowledge in
writing that the Security or Securities or portions thereof with respect to
which such deposit was made are deemed to have been paid for all purposes of
this Indenture and that the entire indebtedness of the Company in respect
thereof has been satisfied and discharged as contemplated in this Section. In
the event that all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions thereof except
that, for any reason, the Officer's Certificate specified in clause (z), shall
not have been delivered, such Securities or portions thereof shall nevertheless
be deemed to have been paid for all purposes of this Indenture, and the Holders
of such Securities or portions thereof shall nevertheless be no longer entitled
to the benefits of this Indenture or of any of the covenants of the Company
under Article Six (except the covenants contained in Sections 602 and 603) or
any other covenants made in respect of such Securities or portions thereof as
contemplated by Section 301 or Section 1201(c), but the indebtedness of the
Company in respect of such Securities or portions thereof shall not be deemed
to have been satisfied and discharged prior to Maturity for any other purpose,
and the Holders of such Securities or portions thereof shall continue to be
entitled to look to the Company for payment of the indebtedness represented
thereby; and, upon Company Request, the Trustee shall acknowledge in writing
that such Securities or portions thereof are deemed to have been paid for all
purposes of this Indenture.
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If payment at Stated Maturity of less than all of the Securities of any
series, or any Tranche thereof, is to be provided for in the manner and with
the effect provided in this Section, the Security Registrar shall select such
Securities, or portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the Securities of a
series or Tranche.
In the event that Securities which shall be deemed to have been paid for
purposes of this Indenture, and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and discharged, all as
provided in this Section do not mature and are not to be redeemed within the 60
day period commencing with the date of the deposit of moneys or Eligible
Obligations, as aforesaid, the Company shall, as promptly as practicable, give
a notice, in the same manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the effect that such deposit
has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been paid for
purposes of this Indenture, as aforesaid, the obligations of the Company and
the Trustee in respect of such Securities under Sections 304, 305, 306, 404,
503 (as to notice of redemption), 602, 603, 907, 909, 910 and 915 and this
Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or any Paying Agent
with which Eligible Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on or assessed against
such Eligible Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any such tax payable
by any entity deemed, for tax purposes, to have been created as a result of
such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any time after
a Security would be deemed to have been paid for purposes of this Indenture,
and, if such is the case, the Company's indebtedness in respect thereof would
be deemed to have been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the Trustee or any Paying
Agent, as the case may be, shall be required to return the money or Eligible
Obligations, or combination thereof, deposited with it as aforesaid to the
Company or its representative under any applicable bankruptcy, insolvency or
other similar law, such Security shall thereupon be deemed retroactively not to
have been paid and any satisfaction and discharge of the Company's indebtedness
in respect thereof shall retroactively be deemed not to have been effected, and
such Security shall be deemed to remain Outstanding and (b) any satisfaction
and discharge of the Company's indebtedness in respect of any Security shall be
subject to the provisions of the last paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture shall upon Company Request cease to be of further effect
(except as hereinafter expressly provided), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; and
40
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of Section
701, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied
and discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602, 603, 907, 909, 910 and
915 and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section, the Trustee shall upon Company Request, assign, transfer and turn over
to the Company, subject to the lien provided by Section 907, any and all money,
securities and other property then held by the Trustee for the benefit of the
Holders of the Securities other than money and Eligible Obligations held by the
Trustee pursuant to Section 703 and shall execute and deliver to the Company
such instruments as, in the judgment of the Company, shall be necessary,
desirable or appropriate to effect or evidence the satisfaction and discharge
of this Indenture.
SECTION 703. APPLICATION OF TRUST MONEY
Neither the Eligible Obligations nor the money deposited pursuant to
Section 701, nor the principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose other than, and shall be
held in trust for, the payment of the principal of and premium, interest and
Additional Amounts, if any, on the Securities or portions of principal amount
thereof in respect of which such deposit was made, all subject, however, to the
provisions of Section 603; provided, however, that, so long as there shall not
have occurred and be continuing an Event of Default, any cash received from such
principal or interest payments on such Eligible Obligations, if not then needed
for such purpose, shall, to the extent practicable, and upon Company Request, be
invested in Eligible Obligations of the type described in clause (b) in the
first paragraph of Section 701 maturing at such times and in such amounts as
shall be sufficient together with any other moneys and the principal and
interest on any other Eligible Obligations then held by the Trustee to pay when
due the principal of and premium, if any, and interest and Additional Amounts,
if any, due and to become due on such Securities or portions thereof on and
prior to the Maturity thereof, and interest earned from such reinvestment shall
be paid over to the Company as received, free and clear of any trust, lien or
pledge under this Indenture except the lien provided by Section 907; and
provided, further, that, so long as there shall not have occurred and be
continuing an Event of Default, any moneys held in accordance with this Section
on the Maturity of all such Securities in excess of the amount required to pay
the principal of and premium, interest and Additional Amounts, if any, then due
on such Securities shall, upon Company Request, be paid over to the Company free
and clear of any trust, lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that if an Event of Default
shall have occurred and be continuing, moneys to be paid over
41
to the Company pursuant to this Section shall be held until such Event of
Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT
"Event of Default," with respect to Securities of any series, means any
one of the following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body) unless it is either inapplicable to a
particular series or it is specifically deleted or modified in or pursuant to
the supplemental indenture, or resolution of the Board of Directors, or
Officer's Certificate pursuant to either thereof, establishing such series of
Securities or in the form of Security for such series:
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days;
(b) default in the payment of all or any part of the principal of any of
the Securities of such series as and when the same shall become due and
payable, either at maturity, upon any redemption, by declaration or
otherwise;
(c) default in the performance or breach of any covenant or warranty
contained in the Securities of such series or in this Indenture (other
than a covenant or warranty a default in whose performance or whose breach
is elsewhere in this Section 801 specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of one or
more series of Securities other than that series), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series, a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder;
(d) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable federal, state or foreign bankruptcy,
liquidation, insolvency, reorganization or other similar law or (B) a
decree or order (1) adjudging the Company a bankrupt or insolvent, (2)
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable federal, state or foreign law, (3) appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property or (4)
ordering the winding up or liquidation of its affairs, and the continuance
42
of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days;
(e) the commencement by the Company of a voluntary case or proceeding
under any applicable federal, state or foreign bankruptcy, liquidation,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it
to the entry of a decree or order for relief in respect of the Company in
an involuntary case or proceeding under any applicable federal, state or
foreign bankruptcy, liquidation, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable federal,
state or foreign law, or the consent by it to the filing of such petition
or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors; or
(f) any other Event of Default provided with respect to Securities of
such series in the supplemental indenture or Board Resolution, or
Officer's Certificate pursuant to either thereof, establishing such
series.
SECTION 802. DECLARATION OF ACCELERATION; RESCISSION AND ANNULMENT
If an Event of Default occurs and is continuing with respect to the
Securities of any series, then and in each and every such case, unless the
principal of all Securities of such series shall have already become due and
payable, either the Trustee for such series or the Holders of not less than 25%
in aggregate principal amount at maturity of the Securities of such series then
Outstanding, by notice in writing to the Company and to the Trustee if given by
such Holders, may declare the principal of all the Securities of such series to
be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event of Default or Events of Default
giving rise to such declaration of acceleration shall, without further act, be
deemed to have been waived, and such declaration and its consequences shall,
without further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue interest on, or Additional Amounts, if any, with
respect to all Securities of such series;
(2) the principal of and premium, if any, on any Securities of such
series which have become due otherwise than by such declaration of
acceleration
43
and interest thereon at the rate or rates prescribed therefor herein
or in such Securities;
(3) to the extent that payment of such interest is lawful, interest
upon overdue interest, if any, or upon Additional Amounts, if any, at
the rate or rates prescribed therefor herein or in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event of Default or Events of Default with respect to
Securities of such series, other than the nonpayment of the principal of
Securities of such series which shall have become due solely by such
declaration of acceleration, shall have been cured or waived as provided
in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE
If an Event of Default described in clause (a) or (b) of Section 801 shall
have occurred and be continuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securities of the series with
respect to which such Event of Default shall have occurred, the whole amount
then due and payable on such Securities for principal and premium, interest and
Additional Amounts, if any, and, to the extent permitted by law, interest on
any overdue principal, premium, interest, and Additional Amounts, if any, at
the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover any amounts due to
the Trustee under Section 907. Unless otherwise specified pursuant to Section
301 with respect to any series of Securities, the rate or rates at which
Securities shall bear interest on overdue principal, premium, interest and
Additional Amounts shall be, to the extent permitted by law, the same rate or
rates at which such Securities shall bear interest prior to maturity.
If the Company shall fail to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series shall have
occurred and be continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest and Additional Amounts, if any, owing and
unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for amounts due to the Trustee under
Section 907) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amounts due it under Section 907.
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 composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED
Any money or other property collected or received by the Trustee pursuant
to this Article or otherwise distributable in respect of the Company's
obligations under this Indenture in the case of an Event of Default shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or premium,
if any, or interest or Additional Amounts, if any, upon presentation of the
Securities in
45
respect of which or for the benefit of which such money shall have been
collected 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 (including any
predecessor Trustee) under Section 907;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal of and premium, if any, and interest and
Additional Amounts, if any, in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for
principal, premium, if any, and interest and Additional Amounts, if any,
respectively; and
THIRD: To the payment of the remainder, if any, to the Company or to
whomsoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS
No Holder shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series or Tranche;
(b) the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event of
Default shall have occurred and be continuing, considered as one class,
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request shall have been
given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
all series in respect of which an Event of Default shall have occurred and
be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or to obtain or to seek to obtain priority or
46
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and (subject to Sections 307
and 311) interest, if any, and Additional Amounts, if any, on such Security on
the Stated Maturity or Maturities if any expressed in such Security (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee and
such Holder shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee or of any Holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES
If an Event of Default shall have occurred and be continuing in respect of
a series of Securities, the Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided, however, that if an Event
of Default shall
47
have occurred and be continuing with respect to more than one series of
Securities, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of the Securities of any
one of such series; and provided, further, that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with any such direction,
(c) subject to the provisions of Section 601, the Trustee shall have the
right to decline to follow any such directions if the Trustee in good
faith shall, by a Responsible Officer of Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability; and
(d) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Before proceeding to exercise any right or power hereunder at the
direction of such Holders, the Trustee shall be entitled to receive from such
Holders reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with any such
direction.
SECTION 813. WAIVER OF PAST DEFAULTS
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or premium, interest or
Additional Amounts, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section
1202 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any and all
Events of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS
The Company and the Trustee agree, and each Holder by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit
48
of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount of the Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or premium, if
any, or interest or Additional Amounts, if any, on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES
(a) Except during the continuance of an Event of Default with respect to
the Securities of any series,
(i) the Trustee undertakes to perform, with respect to the Securities
of such series, such duties and only such duties as are specifically
set forth in this Indenture and the Trust Indenture Act, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may, with
respect to the Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated therein).
49
(b) In case an Event of Default with respect to the Securities of any
series has occurred and is continuing, the Trustee shall exercise, with
respect to the Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) this Subsection shall not be construed to limit the effect of
Subsections (a) and (d) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, 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.
(e) Whether or not therein expressly so provided, every provision of
this Indenture or relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 902. NOTICE OF DEFAULTS
The Trustee shall give notice of any default hereunder known to the
Trustee with respect to the Securities of any series to the Holders of
Securities of such series in the manner and to the extent required to do so by
the Trust Indenture Act, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character specified
in Section 801(c), no such notice to Holders shall be given until at least 45
days after the occurrence thereof. For the purpose of this Section and clause
(i) of Section 903, the term "default" means any event which is, or after
notice or lapse of time, or both, would become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of Section 901:
50
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, or as
otherwise expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall (subject to applicable legal requirements) be
entitled to examine, during normal business hours, the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder;
(i) the Trustee shall not be charged with knowledge of any default (as
defined in Section 902) or Event of Default with respect to the Securities
of any series for which
51
it is acting as Trustee unless either (1) a Responsible Officer of the
Trustee shall have actual knowledge that such default or Event of Default,
as the case may be, exists and constitutes a default or Event of Default, as
the case may be, under this Indenture, or (2) written notice of such default
or Event of Default shall have been given in the manner provided in Section
105 hereof to the Trustee by the Company or any other obligor on such
Securities or by any Holder of such Securities; and
(j) the Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights
or powers conferred upon it under this Indenture.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES
The recitals contained herein and in the Securities (except the Trustee's
certificates of authentication) shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 908 and 913, may otherwise deal with the Company with the same rights
it would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST
Money held by the Trustee in trust hereunder need not be segregated from
other funds, except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
expressly provided herein or otherwise agreed with, and for the sole benefit
of, the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT
The Company shall
(a) pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
52
except to the extent that any such expense, disbursement or advance may be
attributable to the Trustee's negligence, willful misconduct or bad faith;
and
(c) indemnify the Trustee for and hold it harmless from and against, any
loss, liability or expense reasonably incurred by it arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder or the performance of its duties hereunder, including the
reasonable 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 any such loss, liability
or expense may be attributable to its negligence, willful misconduct or
bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such other than property
and funds held in trust under Section 703 (except as otherwise provided in
Section 703).
In addition and without prejudice to the rights provided to the Trustee
under any of the provisions of this Indenture, when the Trustee incurs expenses
or renders services in connection with an Event of Default specified in Section
801(d) or Section 801(e), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable bankruptcy,
insolvency or other similar law.
The Company's obligations under this Section 907 and the lien referred to
in this Section 907 shall survive the resignation or removal of the Trustee,
the discharge of the Company's obligations under Article Seven of this
Indenture and/or the termination of this Indenture.
"Trustee" for purposes of this Section shall include any predecessor
Trustee; provided, however, that the negligence, willful misconduct or bad
faith of any Trustee hereunder shall not affect the rights of any other
Trustee.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest within the
meaning of the Trust Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with the effect, and subject
to the conditions, provided in the Trust Indenture Act and this Indenture. For
purposes of Section 310(b)(1) of the Trust Indenture Act and to the extent
permitted thereby, the Trustee, in its capacity as trustee in respect of the
Securities of any series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities of any other
series issued under this Indenture. Nothing herein shall prevent the Trustee
from filing with the Commission the application referred to in the second to
last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a Trustee hereunder which shall be
53
(a) a corporation organized and doing business under the laws of the
United States, any State or Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal, State authority, or other
applicable Governmental Authority, or
(b) if and to the extent permitted by the Commission by rule, regulation
or order upon application, a corporation or other Person organized and
doing business under the laws of a foreign government, authorized under
such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 or the Dollar equivalent of the
applicable foreign currency and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to
United States institutional trustees,
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 911
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities of all series
and delivery of such Act to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after written
request therefor by the Company or by any Holder who has been a bona
fide Holder for at least six months, or
54
(2) the Trustee shall cease to be eligible under Section 909 or
Section 310(a) of the Trust Indenture Act and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Trustee with respect to all Securities or (y) subject to Section 814, any
Holder who has been a bona fide Holder for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
(other than as contemplated in clause (y) in subsection (d) of this
Section), with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable requirements
of Section 911. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable requirements of Section
911, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 911, any Holder who
has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) So long as no event which is, or after notice or lapse of time, or
both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Trustee appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the Company shall have
delivered to the Trustee (i) a Board Resolution appointing a successor
Trustee, effective as of a date specified therein, and (ii) an instrument
of acceptance of such appointment, effective as of such date, by such
successor Trustee in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection (b) of this Section,
the successor Trustee shall be deemed to
55
have been appointed by the Company pursuant to subsection (e) of this
Section and such appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and all other provisions
of this Section and Section 911 shall be applicable to such resignation,
appointment and acceptance except to the extent inconsistent with this
subsection (f).
(g) The Company (or, should the Company fail so to act promptly, the
successor trustee at the expense of the Company) shall give notice of each
resignation and each removal of the Trustee with respect to the Securities
of any series and each appointment of a successor Trustee with respect to
the Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities of such
series as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of all sums owed to it,
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, subject nevertheless to its
lien provided in Section 907.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee and (3)
shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder
56
administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee, upon payment of
all sums owed to it, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, subject nevertheless to
its lien provided for in Section 907.
(c) Upon request of any such successor Trustee, the Company shall
execute any instruments which fully vest in and confirm to such successor
Trustee all such rights, powers and trusts referred to in subsection (a) or
(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such Person shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
If the Trustee shall be or become a creditor of the Company or any other
obligor upon the Securities (other than by reason of a relationship described
in Section 311(b) of the Trust Indenture Act), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company or such other obligor. For purposes of Section 311(b) of
the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, xxxx of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by
the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage
57
or sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal requirements of
any applicable jurisdiction, the Company and the Trustee shall have power to
appoint, and, upon the written request of the Trustee or of the Holders of at
least 33% in principal amount of the Securities then Outstanding, the Company
shall for such purpose join with the Trustee in the execution and delivery of
all instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the
Company does not join in such appointment within 15 days after the receipt by
it of a request so to do, or if an Event of Default shall have occurred and be
continuing, the Trustee alone shall have power to make such appointment.
Should any written instrument or instruments from the Company be required
by any co-trustee or separate trustee so appointed to more fully confirm to
such co-trustee or separate trustee such property, title, right or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed
either by the Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed, the
Trustee shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing executed by
it, with the concurrence of the Company, may accept the resignation of or
remove any co-trustee
58
or separate trustee appointed under this Section, and, if an Event of
Default shall have occurred and be continuing, the Trustee shall have power
to accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Company. Upon the written request of
the Trustee, the Company shall join with the Trustee in the execution and
delivery of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Trustee, or any other such
trustee hereunder, and the Trustee shall not be personally liable by reason
of any act or omission of any such co-trustee or separate trustee; and
(e) any Act of Holders delivered to the Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT
The Trustee may appoint an Authenticating Agent or Agents with respect to
the Securities of one or more series, or any Tranche thereof, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series or Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States, any State or territory thereof or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal, State or other applicable
Governmental Authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
59
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, in accordance with, and
subject to the provisions of, Section 907.
The provisions of Sections 308, 904 and 905 shall be applicable to each
Authenticating Agent.
If an appointment with respect to the Securities of one or more series
shall be made pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication,
an alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: [Name of Trustee],
as Trustee
By
-------------------------------
As Authenticating
Agent
By
-------------------------------
Authorized Signatory
If all of the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing
60
(which writing need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel), shall appoint, in accordance with this Section and in
accordance with such procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS
Semiannually, not later than ________ ______ and _______ ____ in each year,
commencing _____ ___ , ____, and at such other times as the Trustee may request
in writing, the Company shall furnish or cause to be furnished to the Trustee
information as to the names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it in any other
capacity and afford to the Holders access to information so preserved by it,
all to such extent, if any, and in such manner as shall be required by the
Trust Indenture Act; provided, however, that no such list need be furnished so
long as the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY
Not later than _________ __in each year, commencing with the year ____,
the Trustee shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, a report, dated as of the next
preceding _________ __, with respect to any events and other matters described
in Section 313(a) of the Trust Indenture Act, in such manner and to the extent
required by the Trust Indenture Act. The Trustee shall transmit to the Holders,
the Commission and each securities exchange upon which any Securities are
listed, and the Company shall file with the Trustee (within 15 days after
filing with the Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to the Trustee)
and transmit to the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as shall be required by
the Trust Indenture Act. The Company shall notify the Trustee of the listing of
any Securities on any securities exchange and of any delisting thereof.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
61
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
The Company shall not consolidate with or merge into any other corporation
or other entity, or convey or otherwise transfer or lease its properties and
assets substantially as an entirety to any Person, unless
(a) the corporation or other entity formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a Person validly existing under the
laws of its jurisdiction of organization, and shall expressly assume by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest and Additional Amounts, if
any, on all Outstanding Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transactions have been
complied with.
SECTION 1102. SUCCESSOR PERSON SUBSTITUTED
Upon any consolidation by the Company with or merger by the Company into
any other corporation or other entity or any conveyance, or other transfer or
lease of the properties and assets of the Company substantially as an entirety
in accordance with Section 1101, the successor corporation or other entity
formed by such consolidation or into which the Company is merged or the Person
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities Outstanding hereunder.
SECTION 1103. MERGER INTO COMPANY; CERTAIN TRANSFERS
Nothing in this Indenture shall be deemed to prevent or restrict any
consolidation or merger after the consummation of which the Company would be
the surviving or resulting entity or any conveyance or other transfer, or lease
of any part of the properties of the Company which does not constitute the
entirety, or substantially the entirety, of the direct assets of the
62
Company. Nothing in this Indenture shall be deemed to prevent or restrict (i)
any consolidation or merger of any Affiliate of the Company with any other
person or entity (other than with the Company itself in a merger or
consolidation not permitted under this Article Eleven), or (ii) any conveyance
or other transfer, or lease, of any part of the assets of any Affiliate of the
Company (other than the assets of the Company itself.)
SECTION 1104. CONSOLIDATION DEFINED
The term "consolidation" as used in this Article shall include similar
transactions such as amalgamations and reorganizations.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holders, the Company 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:
(a) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein
and in the Securities, all as provided in Article Eleven; or
(b) to evidence the addition of any guarantee for the benefit of the
Holders of one or more specified series of the Securities, or the release
or substitution of any guarantor in accordance with the provisions hereof
or the provisions of the Securities of the specified series; or
(c) to add one or more covenants of the Company or other provisions for
the benefit of all Holders or for the benefit of the Holders of, or to
remain in effect only so long as there shall be Outstanding, Securities of
one or more specified series, or one or more specified Tranches thereof,
or to surrender any right or power herein conferred upon the Company; or
(d) to add any additional Events of Default with respect to all or any
series of Securities Outstanding hereunder; or
(e) to change or eliminate any provision of this Indenture or to add any
new provision to this Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the interests of the
Holders of Securities of any series or Tranche (other than any series the
terms of which permit such change, elimination or addition) Outstanding on
the date of such indenture supplemental hereto in any material respect,
such change, elimination or addition shall become effective (i) with
respect to such series or Tranche only pursuant to the provisions of
Section 1202 hereof or (ii) when no Security of such series or Tranche
remains Outstanding; or
63
(f) to provide collateral security for all but not part of the
Securities; or
(g) to establish the form or terms of Securities of any series or
Tranche as contemplated by Sections 201 and 301; or
(h) to the extent not provided herein or pursuant to Section 301, to
provide for the authentication, delivery and issuance of bearer securities
and coupons appertaining thereto representing interest, if any, thereon
and for the procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the solicitation of the vote
or consent of, the holders thereof, and for any and all other matters
incidental thereto; or
(i) to evidence and provide for the acceptance of appointment hereunder
by a separate or successor Trustee or co-trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(j) to provide for the procedures required to permit the Company to
utilize, at its option, a noncertificated system of registration for all,
or any series or Tranche of, the Securities; or
(k) to change any place or places where (1) the principal of and
premium, interest and Additional Amounts, if any, on all or any series of
Securities, or any Tranche thereof, shall be payable, (2) all or any series
of Securities, or any Tranche thereof, may be surrendered for registration
of transfer, (3) all or any series of Securities, or any Tranche thereof,
may be surrendered for exchange and (4) notices and demands to or upon the
Company in respect of all or any series of Securities, or any Tranche
thereof, and this Indenture may be served; or
(l) to cure any ambiguity, or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
With the consent of the Holders of a majority in aggregate principal
amount of the Securities of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by Board Resolutions, 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 modifying in any manner the rights of the
Holders of Securities of such series under the Indenture; provided, however,
that if there shall be Securities of more than one series Outstanding hereunder
and if a proposed supplemental indenture shall directly affect the rights of
the Holders of Securities of one or more, but less than all, of such series,
then the consent only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided, further, that if the
Securities of any series shall have been issued in more than one Tranche and if
the proposed supplemental indenture shall directly affect the rights of the
Holders
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of Securities of one or more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such supplemental
indenture shall:
(a) change the Stated Maturity of the principal of, or any installment
of principal of or interest on any Security (other than pursuant to the
terms thereof), or reduce the principal amount thereof or the rate of
interest thereon (or the amount of any installment of interest thereon) or
change the method of calculating such rate or reduce any premium payable
upon the redemption thereof, or reduce the amount of the principal of a
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 802, or change
the coin or currency (or other property), in which any Security or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity of any Security (or, in the case of redemption, on or
after the Redemption Date), without, in any such case, the consent of the
Holder of such Security, or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series or any Tranche thereof, the consent of the
Holders of which is required for any such supplemental indenture, or the
consent of the Holders of which is required for any waiver of compliance
with any provision of this Indenture or of any default hereunder and its
consequences, or reduce the requirements of Section 1304 for quorum or
voting, without, in any such case, the consent of the Holders of each
Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section, Section 607 or Section
813 with respect to the Securities of any series, or any Tranche thereof,
except to increase the percentages in principal amount referred to in this
Section or such other Sections or to provide that other provisions of this
Indenture cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in accordance
with the requirements of Sections 911(b), 914 and 1201(h).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof. A waiver
by a Holder of such Holder's right to consent under this Section shall be
deemed to be a consent of such Holder.
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Anything in this Indenture to the contrary notwithstanding, if the
Officer's Certificate, supplemental indenture or Board Resolution, as the case
may be, establishing the Securities of any series or Tranche shall provide that
the Company may make certain specified additions, changes or eliminations to or
from the Indenture which shall be specified in such Officer's Certificate,
supplemental indenture or Board Resolution establishing such series or Tranche,
(a) the Holders of Securities of such series or Tranche shall be deemed to have
consented to a supplemental indenture containing such additions, changes or
eliminations to or from the Indenture which shall be specified in such
Officer's Certificate, supplemental indenture or Board Resolution establishing
such series or Tranche, (b) no Act of such Holders shall be required to
evidence such consent and (c) such consent may be counted in the determination
of whether or not the Holders of the requisite principal amount of Securities
shall have consented to such supplemental indenture.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 901) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
SECTION 1205. 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, if
applicable.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES
Securities of any series, or any Tranche thereof, authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series, or
any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
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SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE
If the terms of any particular series of Securities shall have been
established in a Board Resolution or an Officer's Certificate as contemplated by
Section 301, and not in an indenture supplemental hereto, additions to, changes
in or the elimination of any of such terms may be effected by means of a
supplemental Board Resolution or Officer's Certificate, as the case may be,
delivered to, and accepted by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate shall not be accepted by
the Trustee or otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such additions, changes or
elimination were contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the Trustee, any such
supplemental Board Resolution or Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of Sections 1204 and 1205.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED
A meeting of Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS
(a) The Trustee may at any time call a meeting of Holders of Securities
of one or more, or all, series, or any Tranche or Tranches thereof, for
any purpose specified in Section 1301, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, as the Trustee
shall determine, or, with the approval of the Company, at any other place.
Notice of every such meeting, setting forth the time and the 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 nor more than 180 days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche or
Tranches thereof, by the Company or by the Holders of 33% in aggregate
principal amount of all of such series and Tranches, considered as one
class, for any purpose specified in Section 1301, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given 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
Company or the Holders of Securities of such series and Tranches 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, or in such other
place as
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shall be determined or approved by the Company, for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, shall be valid without notice if the
Holders of all Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the Company and
the Trustee are present, or if notice is waived in writing before or after
the meeting by the Holders of all Outstanding Securities of such series,
or any Tranche or Tranches thereof, or by such of them as are not present
at the meeting in person or by proxy, and by the Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS
To be entitled to vote at any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof, a Person shall be (a)
a Holder of one or more Outstanding Securities of such series or Tranches, or
(b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or Tranches by such
Holder or Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche 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 Company and its counsel.
SECTION 1304. QUORUM; ACTION
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of the series and Tranches with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series and Tranches, considered as
one class, shall constitute a quorum. In the absence of a quorum within one
hour of the time appointed for any such meeting, the meeting shall, if convened
at the request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for such period as
may be 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 such period as may be determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Except as provided by Section 1305(e), notice of the reconvening of
any meeting adjourned for more than 30 days shall be given as provided in
Section 1302(a) not less than 10 days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal
amount of the Outstanding Securities of such series and Tranches which shall
constitute a quorum.
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Except as limited by Section 1202, 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
aggregate principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been called, considered
as one class; provided, however, that, except as so limited, any resolution
with respect to any action which this Indenture expressly provides may be taken
by the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and Tranches,
considered as one class, 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 the Outstanding Securities of such series and Tranches, considered as
one class.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all
the Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS; CONDUCT
AND ADJOURNMENT OF MEETINGS
(a) Attendance at meetings of Holders of Securities may be in person or
if the Securities are in registered form by proxy; and, to the extent
permitted by law, any such proxy shall remain in effect and be binding
upon any future Holder of the Securities with respect to which it was
given unless and until specifically revoked by the Holder or future Holder
of such Securities before being voted.
(b) 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 Securities in regard to proof of the holding of such
Securities and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the 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 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.
(c) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b), in which case the
Company or the Holders of Securities of the series and Tranches 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
aggregate principal amount of the Outstanding Securities of all series and
Tranches represented at the meeting, considered as one class.
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(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $1 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any 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 Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a quorum
is present may be adjourned from time to time by Persons entitled to vote
a majority in aggregate principal amount of the Outstanding Securities of
all series and Tranches represented at the meeting, considered as one
class; and the meeting may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS
The vote upon any resolution submitted to any meeting of Holders shall be
by written ballots on which shall be subscribed the signatures of the Holders
or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches with respect
to which the meeting shall have been called, 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 of all votes cast at the meeting. A record of the proceedings of each
meeting of Holders 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 1302 and, if
applicable, Section 1304. 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 Company, 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.
SECTION 1307. ACTION WITHOUT MEETING
In lieu of a vote of Holders at a meeting as hereinbefore contemplated in
this Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE
No recourse shall be had for the payment of the principal of or premium,
if any, or interest or Additional Amounts, if any, on any Securities, or any
part thereof, or for any claim based thereon or otherwise in respect thereof,
or of the indebtedness represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any past, present or future
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incorporator, shareholder, member, limited partner, stockholder, officer,
manager or director, as such, of the Company or any predecessor or successor of
the Company, either directly or indirectly, whether by virtue of any
constitutional provision, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Securities are solely obligations of the
Company, and that no personal liability whatsoever shall attach to, or be
incurred by, any past, present or future incorporator, shareholder, member,
limited partner, stockholder, officer, manager or director of the Company or
any predecessor or successor of the Company, either directly or indirectly,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or to be implied herefrom or therefrom, and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issuance of the Securities.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
NICE-SYSTEMS LTD.
By:
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Name:
Title:
----------------------------------,
as Trustee
By:
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Name:
Title:
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