Exhibit 4.3
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NICE-SYSTEMS LTD.
TO
______________________,
TRUSTEE
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INDENTURE
SUBORDINATED 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 ................................. 12
Section 106. Notice to Holders of Securities; Waiver .............................. 13
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 .................................................. 14
Section 111. Benefits of Indenture ................................................ 14
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 ................................. 17
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 .................. 25
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 .............................................. 30
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 ................................ 31
Section 403. Selection of Securities to Be Redeemed ............................... 31
Section 404. Notice of Redemption ................................................. 31
Section 405. Securities Payable on Redemption Date ................................ 33
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
</TABLE>
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<TABLE>
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 .................................. 41
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 ........................................... 46
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 ......................................... 48
Section 813. Waiver of Past Defaults .................................................. 48
Section 814. Undertaking for Costs .................................................... 49
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 ................................................ 51
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 .................................. 54
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
</TABLE>
ii
<TABLE>
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
ARTICLE FIFTEEN Subordination of Securities ............................................. 71
Section 1501. Securities Subordinate to Senior Indebtedness ............................ 71
Section 1502. Payment Over of Proceeds of Securities ................................... 71
Section 1503. Disputes with Holders of Certain Senior Indebtedness ..................... 73
Section 1504. Subrogation .............................................................. 73
Section 1505. Obligation of the Company Unconditional .................................. 74
Section 1506. Priority of Senior Indebtedness Upon Maturity ............................ 74
Section 1507. Trustee as Holder of Senior Indebtedness ................................. 74
Section 1508. Notice to Trustee to Effectuate Subordination ............................ 74
Section 1509. Modification, Extension, etc. of Senior Indebtedness ..................... 75
Section 1510. Trustee Has No Fiduciary Duty to Holders of Senior Indebtedness .......... 75
Section 1511. Paying Agents Other Than the Trustee ..................................... 75
Section 1512. Rights of Holders of Senior Indebtedness Not Impaired .................... 76
Section 1513. Effect of Subordination Provisions; Termination .......................... 76
</TABLE>
iii
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>
iv
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
subordinated 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
2
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.
"SENIOR INDEBTEDNESS" means all obligations (other than
non-recourse obligations and the indebtedness issued under this Indenture) of,
or guaranteed or assumed by, the Company for borrowed money, including both
senior and subordinated indebtedness for borrowed money (other than the
Securities), or for the payment of money relating to any lease which is
capitalized on the consolidated balance sheet of the Company and its
subsidiaries in accordance with generally accepted accounting principles as in
effect from time to time, or evidenced by bonds, debentures, notes or other
similar instruments, and in each case, amendments, renewals, extensions,
modifications and refundings of any such indebtedness or obligations, whether
existing as of the date of this Indenture or subsequently incurred by the
Company unless, in the case of any particular indebtedness, renewal, extension
or refunding, the instrument creating or evidencing the same or the assumption
or guarantee of the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is pari passu
with the Securities.
"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.
7
"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.
"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
8
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;
(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
9
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 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.
10
(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.
(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,
11
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
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:
12
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.
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.
13
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 and, so long as the notice
described in Section 1513 hereof has not been given, the holders of Senior
Indebtedness, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTOPM 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
14
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 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
15
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 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.
16
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(v), 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 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:
17
(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 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;
18
(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 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;
19
(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 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;
20
(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
(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
21
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 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);
22
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 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.
23
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 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.
24
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 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
25
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.
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
26
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.
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
27
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 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
28
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 (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
29
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.
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 310. 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 310. 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.
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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.
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:
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(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 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.
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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 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.
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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.
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.
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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 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.
35
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.
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
36
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.
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
37
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.
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
38
(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
(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
39
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.
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.
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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
(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
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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 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 occasioned by the provisions of Article Fifteen, or 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
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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 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
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(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 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.
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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.
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.
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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 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: Subject to Article Fifteen, 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
46
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 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.
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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 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.
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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 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
49
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).
(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
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"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:
(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;
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(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 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);
52
(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), 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.
53
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a Trustee hereunder which shall be
(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:
54
(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
(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
55
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 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
56
provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without any further
act, deed or conveyance shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the 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
57
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 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
58
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 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.
59
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the 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
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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 (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).
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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
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(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.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of the Securities of each series, by its acceptance
thereof, likewise covenants and agrees, that the payment of the principal of and
premium, if any, and interest, if any, and Additional Amounts, if any, on each
and all of the Securities is hereby expressly subordinated and junior, to the
extent and in the manner set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its behalf to take
such action as may be necessary or appropriate to effectuate the subordination
as provided in this Article, and appoints the Trustee its attorney-in-fact for
any and all such purposes.
SECTION 1502. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy proceedings
or any receivership, liquidation, reorganization or other similar proceedings in
respect of the Company or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject to the
provisions of Section 1503, that (i) a default shall have occurred with respect
to the payment of principal of or interest on or other monetary amounts due and
payable on any Senior Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or interest or other monetary
amounts due and payable) in respect of any Senior Indebtedness, as defined
therein or in the instrument under which the same is outstanding, permitting the
holder or holders thereof to accelerate the maturity thereof (with notice or
lapse of time, or both), and such default shall have continued beyond the period
of grace, if any, in respect thereof, and, in the cases of subclauses (i) and
(ii) of this clause (b), such default shall not have been cured or waived or
shall not have ceased to exist, or (c) that the principal of and
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accrued interest on the Securities of any series shall have been declared due
and payable pursuant to Section 801 and such declaration shall not have been
rescinded and annulled as provided in Section 802, then:
(1) the holders of all Senior Indebtedness shall first be
entitled to receive payment of the full amount due thereon, or
provision shall be made for such payment in money or money's
worth, before the Holders of any of the Securities are
entitled to receive a payment on account of the principal of
or interest on the indebtedness evidenced by the Securities,
including, without limitation, any payments made pursuant to
Articles Four and Five;
(2) any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or
securities, to which any Holder or the Trustee would be
entitled except for the provisions of this Article, shall be
paid or delivered by the person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of
such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of such
Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness
remaining unpaid after giving effect to any concurrent payment
or distribution (or provision therefor) to the holders of such
Senior Indebtedness, before any payment or distribution is
made to the Holders of the indebtedness evidenced by the
Securities or to the Trustee under this Indenture; and
(3) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Company of any
kind or character, whether in cash, property or securities, in
respect of principal of or interest on the Securities or in
connection with any repurchase by the Company of the
Securities, shall be received by the Trustee or any Holder
before all Senior Indebtedness is paid in full, or provision
is made for such payment in money or money's worth, such
payment or distribution in respect of principal of or interest
on the Securities or in connection with any repurchase by the
Company of the Securities shall be paid over to the holders of
such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any such
Senior Indebtedness may have been issued, ratably as
aforesaid, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect
to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 123rd day
following the date of deposit of cash or Government Obligations pursuant to
Section 701 (provided all conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest thereon will not be subject
to any rights of holders of Senior Indebtedness including, without limitation,
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those arising under this Article Sixteen; provided that no event described in
clauses (d) and (e) of Section 801 with respect to the Company has occurred
during such 123-day period.
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan or reorganization or readjustment which are subordinate
in right of payment to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article Eleven hereof
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Eleven hereof. Nothing in Section 1501 or in this Section 1502
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 907.
SECTION 1503. DISPUTES WITH HOLDERS OF CERTAIN SENIOR INDEBTEDNESS.
Any failure by the Company to make any payment on or perform
any other obligation in respect of Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other obligation as to which the
provisions of this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed, guaranteed or
otherwise created such indebtedness or obligation, shall not be deemed a default
under clause (b) of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation and (ii) either (A)
no final judgment relating to such dispute shall have been issued against the
Company which is in full force and effect and is not subject to further review,
including a judgment that has become final by reason of the expiration of the
time within which a party may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or appeal has been issued, the
Company shall in good faith be prosecuting an appeal or other proceeding for
review and a stay or execution shall have been obtained pending such appeal or
review.
SECTION 1504. SUBROGATION.
Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash (or securities or other
property satisfactory to such holders) in full payment of such Senior
Indebtedness then outstanding. Subject to the prior payment in full of all
Senior Indebtedness, the rights of the Holders of the Securities shall be
subrogated to the rights of the holders of Senior Indebtedness to receive any
further payments or distributions of cash, property or securities of the Company
applicable to the holders of the Senior Indebtedness until all amounts owing on
the Securities shall be paid in full; and such payments or distributions of
cash, property or securities received by the Holders of the Securities, by
reason of such subrogation, which otherwise would be paid or distributed to the
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holders of such Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders, be deemed to be
a payment by the Company to or on account of Senior Indebtedness, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders, on the one hand, and
the holders of the Senior Indebtedness, on the other hand.
SECTION 1505. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of and interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Indebtedness
in respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
Upon any payment or distribution of assets or securities of
the Company referred to in this Article, the Trustee and the Holders shall be
entitled to rely upon any order or decree of a court of competent jurisdiction
in which such dissolution, winding up, liquidation or reorganization proceedings
are pending for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon, and all other facts pertinent thereto or
to this Article.
SECTION 1506. PRIORITY OF SENIOR INDEBTEDNESS UPON MATURITY.
Upon the maturity of the principal of any Senior Indebtedness
by lapse of time, acceleration or otherwise, all matured principal of Senior
Indebtedness and interest and premium, if any, thereon shall first be paid in
full before any payment of principal or premium, if any, or interest, if any, is
made upon the Securities or before any Securities can be acquired by the Company
or any sinking fund payment is made with respect to the Securities (except that
required sinking fund payments may be reduced by Securities acquired before such
maturity of such Senior Indebtedness).
SECTION 1507. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all rights set forth in this
Article with respect to any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness. Nothing in this Article
shall deprive the Trustee of any of its rights as such holder.
SECTION 1508. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any other
provision of the Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which
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would prohibit the making of any payment of moneys to or by the Trustee unless
and until the Trustee shall have received written notice thereof from the
Company, from a Holder or from a holder of any Senior Indebtedness or from any
representative or representatives of such holder and, prior to the receipt of
any such written notice, the Trustee shall be entitled, subject to Section 901,
in all respects to assume that no such facts exist; provided, however, that, if
prior to the fifth Business Day preceding the date upon which by the terms
hereof any such moneys may become payable for any purpose, or in the event of
the execution of an instrument pursuant to Section 702 acknowledging
satisfaction and discharge of this Indenture, then if prior to the second
Business Day preceding the date of such execution, the Trustee shall not have
received with respect to such moneys the notice provided for in this Section,
then, anything herein contained to the contrary notwithstanding, the Trustee
may, in its discretion, receive such moneys and/or apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary, which may be received by it on or after such date; provided, however,
that no such application shall affect the obligations under this Article of the
persons receiving such moneys from the Trustee.
SECTION 1509. MODIFICATION, EXTENSION, ETC. OF SENIOR INDEBTEDNESS.
The holders of Senior Indebtedness may, without affecting in
any manner the subordination of the payment of the principal of and premium, if
any, and interest, if any, on the Securities, at any time or from time to time
and in their absolute discretion, agree with the Company to change the manner,
place or terms of payment, change or extend the time of payment of, or renew or
alter, any Senior Indebtedness, or amend or supplement any instrument pursuant
to which any Senior Indebtedness is issued, or exercise or refrain from
exercising any other of their rights under the Senior Indebtedness including,
without limitation, the waiver of default thereunder, all without notice to or
assent from the Holders or the Trustee.
SECTION 1510. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF SENIOR
INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
objectives as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and
shall not be liable to any such holders if it shall mistakenly pay over or
deliver to the Holders or the Company or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
SECTION 1511. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Sections 1507, 1508 and 1510 shall not apply to the Company if it
acts as Paying Agent.
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SECTION 1512. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT IMPAIRED.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at any time or in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
SECTION 1513. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the contrary,
other than as provided in the immediately succeeding sentence, all the
provisions of this Indenture shall be subject to the provisions of this Article,
so far as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Sixteen shall be of no further effect, and the
Securities shall no longer be subordinated in right of payment to the prior
payment of Senior Indebtedness, if the Company shall have delivered to the
Trustee a notice to such effect. Any such notice delivered by the Company shall
not be deemed to be a supplemental indenture for purposes of Article Twelve.
---------------------
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:
-----------------------------------
Name:
Title:
----------------------------------,
as Trustee
By:
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Name:
Title:
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