EXHIBIT 4.3
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AMKOR TECHNOLOGY, INC.
AND
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
____________________________
INDENTURE
Dated as of ___________, 200_
____________________________
____________________________
NON-CONVERTIBLE SENIOR SUBORDINATED DEBT SECURITIES
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE..................................................... 1
Section 1.01 Definitions............................................................................ 1
Section 1.02 Other Definitions...................................................................... 8
Section 1.03 Incorporation by Reference of Trust Indenture Act...................................... 8
Section 1.04 Rules of Construction.................................................................. 8
ARTICLE 2 THE SECURITIES................................................................................. 9
Section 2.01 Forms Generally........................................................................ 9
Section 2.02 Amount Unlimited; Issuable in Series................................................... 9
Section 2.03 Execution and Authentication........................................................... 12
Section 2.04 Registrar, Paying Agent and Conversion Agent........................................... 13
Section 2.05 Paying Agent to Hold Money in Trust.................................................... 14
Section 2.06 Holder Lists........................................................................... 14
Section 2.07 Transfer and Exchange.................................................................. 14
Section 2.08 Replacement Securities................................................................. 16
Section 2.09 Outstanding Securities................................................................. 17
Section 2.10 Treasury Securities.................................................................... 17
Section 2.11 Temporary Securities................................................................... 17
Section 2.12 Cancellation........................................................................... 18
Section 2.13 Defaulted Interest..................................................................... 18
ARTICLE 3 REDEMPTION AND PREPAYMENT...................................................................... 19
Section 3.01 Applicability of Article............................................................... 19
Section 3.02 Election to Redeem; Notice to Trustee.................................................. 19
Section 3.03 Selection by Trustee of Securities to Be Redeemed...................................... 19
Section 3.04 Notice of Redemption................................................................... 20
Section 3.05 Deposit of Redemption Price............................................................ 21
Section 3.06 Securities Payable on Redemption Date.................................................. 22
Section 3.07 Securities Redeemed in Part............................................................ 22
Section 3.08 Conversion Arrangement on Call for Redemption.......................................... 22
ARTICLE 4 COVENANTS...................................................................................... 23
Section 4.01 Payment of Securities.................................................................. 23
Section 4.02 Maintenance of Office or Agency........................................................ 23
Section 4.03 Compliance Certificate................................................................. 24
Section 4.04 Taxes.................................................................................. 24
Section 4.05 Stay, Extension and Usury Laws......................................................... 24
Section 4.06 Corporate Existence.................................................................... 25
Section 4.07 Money for Securities Payments To Be Held in Trust...................................... 25
Section 4.08 Taxes.................................................................................. 26
Section 4.09 Reports by Company..................................................................... 26
Section 4.10 Waiver of Certain Covenants............................................................ 26
ARTICLE 5 SUCCESSORS..................................................................................... 27
Section 5.01 Merger, Consolidation, or Sale of Assets............................................... 27
Section 5.02 Successor Corporation Substituted...................................................... 27
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TABLE OF CONTENTS
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ARTICLE 6 DEFAULTS AND REMEDIES.......................................................................... 28
Section 6.01 Events of Default...................................................................... 28
Section 6.02 Acceleration........................................................................... 29
Section 6.03 Other Remedies......................................................................... 29
Section 6.04 Waiver of Past Defaults................................................................ 30
Section 6.05 Control by Majority.................................................................... 30
Section 6.06 Limitation on Suits.................................................................... 30
Section 6.07 Rights of Holders of Securities to Receive Payment..................................... 31
Section 6.08 Collection Suit by Trustee............................................................. 31
Section 6.09 Trustee May File Proofs of Claim....................................................... 31
Section 6.10 Priorities............................................................................. 32
Section 6.11 Undertaking for Costs.................................................................. 32
ARTICLE 7 TRUSTEE........................................................................................ 32
Section 7.01 Duties of Trustee...................................................................... 32
Section 7.02 Rights of Trustee...................................................................... 33
Section 7.03 Individual Rights of Trustee........................................................... 34
Section 7.04 Trustee's Disclaimer................................................................... 34
Section 7.05 Notice of Defaults..................................................................... 34
Section 7.06 Reports by Trustee to Holders of the Securities........................................ 35
Section 7.07 Compensation and Indemnity............................................................. 35
Section 7.08 Replacement of Trustee................................................................. 36
Section 7.09 Successor Trustee by Merger, etc....................................................... 37
Section 7.10 Eligibility; Disqualification.......................................................... 37
Section 7.11 Preferential Collection of Claims Against Company...................................... 37
ARTICLE 8 AMENDMENT, SUPPLEMENT AND WAIVER............................................................... 37
Section 8.01 Without Consent of Holders of Securities............................................... 37
Section 8.02 With Consent of Holders of Securities.................................................. 39
Section 8.03 Compliance with Trust Indenture Act.................................................... 40
Section 8.04 Revocation and Effect of Consents...................................................... 40
Section 8.05 Notation on or Exchange of Securities.................................................. 41
Section 8.06 Effect of Supplemental Indentures...................................................... 41
Section 8.07 Trustee Protected...................................................................... 41
Section 8.08 Subordination Unimpaired............................................................... 41
ARTICLE 9 MISCELLANEOUS.................................................................................. 41
Section 9.01 Trust Indenture Act Controls........................................................... 41
Section 9.02 Notices................................................................................ 42
Section 9.03 Communication by Holders of Securities with Other Holders of Securities................ 43
Section 9.04 Certificate and Opinion as to Conditions Precedent..................................... 43
Section 9.05 Statements Required in Certificate or Opinion.......................................... 43
Section 9.06 Rules by Trustee and Agents............................................................ 44
Section 9.07 No Personal Liability of Directors, Officers, Employees and Stockholders............... 44
Section 9.08 Governing Law, Consent to Jurisdiction and Service of Process.......................... 44
Section 9.09 Agent for Service; Submission to Jurisdiction.......................................... 44
Section 9.10 Successors............................................................................. 45
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TABLE OF CONTENTS
(continued)
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Section 9.11 Severability........................................................................... 45
Section 9.12 Counterpart Originals.................................................................. 45
Section 9.13 Table of Contents, Headings, etc....................................................... 45
Section 9.14 Designated Senior Debt................................................................. 45
ARTICLE 10 SINKING FUNDS................................................................................. 45
Section 10.01 Applicability of Article............................................................... 45
Section 10.02 Satisfaction of Sinking Fund Payments with Securities.................................. 46
Section 10.03 Redemption of Securities for Sinking Fund.............................................. 46
ARTICLE 11 DEFEASANCE AND COVENANT DEFEASANCE............................................................ 46
Section 11.01 Company's Option to Effect Defeasance or Covenant Defeasance........................... 46
Section 11.02 Defeasance and Discharge............................................................... 47
Section 11.03 Covenant Defeasance.................................................................... 47
Section 11.04 Conditions to Defeasance or Covenant Defeasance........................................ 48
Section 11.05 Deposited Money, U.S. Government Obligations and Foreign Government Obligations to be
Held in Trust; Miscellaneous Provisions................................................ 50
Section 11.06 Reinstatement.......................................................................... 50
ARTICLE 12 [INTENTIONALLY OMITTED]....................................................................... 51
ARTICLE 13 SUBORDINATION................................................................................. 51
Section 13.01 Agreement to Subordinate............................................................... 51
Section 13.02 Liquidation; Dissolution; Bankruptcy................................................... 51
Section 13.03 Default on Senior Debt and/or Designated Senior Debt................................... 51
Section 13.04 Acceleration of Securities............................................................. 52
Section 13.05 When Distribution Must Be Paid Over.................................................... 53
Section 13.06 Notice by Company...................................................................... 53
Section 13.07 Subrogation............................................................................ 53
Section 13.08 Relative Rights........................................................................ 53
Section 13.09 Subordination May Not Be Impaired by Company........................................... 54
Section 13.10 Distribution or Notice to Representative............................................... 54
Section 13.11 Rights of Trustee and Paying Agent..................................................... 54
Section 13.12 Authorization to Effect Subordination.................................................. 55
Section 13.13 Article Applicable to Paying Agents.................................................... 55
Section 13.14 Senior Debt Entitled to Rely........................................................... 55
Section 13.15 Permitted Payments..................................................................... 55
Section 13.16 Certain Conversions Deemed Payment..................................................... 55
ARTICLE 14 SATISFACTION AND DISCHARGE OF INDENTURE....................................................... 56
Section 14.01 Discharge of Indenture................................................................. 56
Section 14.02 Deposited Monies to be Held in Trust by Trustee........................................ 57
Section 14.03 Paying Agent to Repay Monies Held...................................................... 57
Section 14.04 Return of Unclaimed Monies............................................................. 57
Section 14.05 Reinstatement.......................................................................... 57
EXHIBITS
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TABLE OF CONTENTS
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Exhibit A FORM OF SECURITY
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Amkor Technology, Inc.
Certain Sections of this Indenture relating to Sections 3.10 through 3.18,
inclusive, of the Trust Indenture Act of 1939:
Section 3.10 (a)(1)..................................................................... 7.03, 7.10
(a)(2)..................................................................... 7.03, 7.10
(a)(3)..................................................................... Not Applicable
(a)(4)..................................................................... Not Applicable
(b)........................................................................ 7.03, 7.08, 7.10
Section 3.11 (a)........................................................................ 7.11
(b)........................................................................ 7.11
Section 3.12 (a)........................................................................ 2.06
(b)........................................................................ 9.03
(c)........................................................................ 9.03
Section 3.13 (a)........................................................................ 7.06
(b)(2)..................................................................... 7.06, 7.07
(c)........................................................................ 7.06, 9.02
(d)........................................................................ 7.06
Section 3.14 (a)........................................................................ 4.09
(a)(4)..................................................................... 1.01, 4.03(a), 9.05
(b)........................................................................ Not Applicable
(c)(1)..................................................................... 1.01, 9.04(a), 9.05
(c)(2)..................................................................... 1.01, 9.04(b), 9.05
(c)(3)..................................................................... Not Applicable
(d)........................................................................ Not Applicable
(e)........................................................................ 9.05
Section 3.15 (a)........................................................................ 7.01(b)
(b)........................................................................ 7.05
(c)........................................................................ 7.01(a)
(d)........................................................................ 6.05, 7.01(c)
(e)........................................................................ 6.07
Section 3.16 (a)........................................................................ 6.04, 6.05
(a)(1)(A).................................................................. 6.05
(a)(1)(B).................................................................. 6.04
(a)(2)..................................................................... Not Applicable
(a)(2)..................................................................... Not Applicable
(b)........................................................................ 6.07
(c)........................................................................ 1.01, 2.02
Section 3.17 (a)(1)..................................................................... 6.08
(a)(2)..................................................................... 6.09
(b)........................................................................ 2.05
Section 3.18 (a)........................................................................ 9.01
(c)........................................................................ 9.01
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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INDENTURE dated as of __________, 200_ between Amkor Technology, Inc., a
Delaware corporation (the "Company"), and U.S. Bank National Association, a
national banking association (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof appertaining, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"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 purposes of this definition, "control,"
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more, or an
agreement, obligation or option to purchase 10% or more, of the Voting Stock of
a Person shall be deemed to be control. For purposes of this definition, the
terms "controlling," "controlled by" and "under common control with" shall have
correlative meanings.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors as from time to time amended and applicable to
relevant case.
"Board of Directors" means the Board of Directors of the Company, or any
authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited), and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Company" means Amkor Technology, Inc., and any and all successors
thereto.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee at which the trust created by this Indenture is administered, which
address as of the date hereof is specified in Section 11.02 hereof, or such
other address as to which the Trustee may give notice to the Company.
"Covenant Defeasance" has the meaning specified in Section 11.03.
["Credit Agreements" means (i) the Credit Agreement, dated as of June 29,
2004 (as amended, supplemented or otherwise modified from time to time), among
the Company, each financial institution or other entity that (a) is listed on
the signature pages thereof as a lender or (b) from time to time becomes a party
thereto by execution of an assignment and acceptance, each lender or affiliates
of a lender that (a) is listed on the signature pages thereof as an issuer or
(b) becomes an issuer with the approval of the administrative agent and the
Company, Citicorp North America, Inc., as administrative agent for the lenders
and the issuers, Citigroup Global Markets Inc., as sole lead arranger and sole
bookrunner, JPMorgan Chase Bank, as syndication agent for the lenders and the
issuers and Xxxxxxx Xxxxx Capital Corporation, as documentation agent, as such
agreement may be amended, restated, modified, renewed, refunded, replaced or
refinanced, in whole or in part, from time to time, and (ii) the Credit
Agreement, dated as of October 27, 2004 (as amended, supplemented or otherwise
modified from time to time), among the Company, each financial institution or
other entity that (a) is listed on the signature pages thereof as a lender or
(b) from time to time becomes a party thereto by execution of an assignment and
acceptance, Citicorp North America, Inc., as administrative agent for the
lenders and as collateral agent for the secured parties, Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Inc., as syndication agent for the lenders, JPMorgan Chase Bank,
as documentation agent, Citigroup Global Markets Inc., as sole lead arranger,
and Citigroup Global Markets Inc, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Inc.,
and X.X. Xxxxxx Securities Inc., as joint bookrunners, as such agreement may be
amended, restated, modified, renewed, refunded, replaced or refinanced, in whole
or in part, from time to time.]
"Custodian" means the Trustee, as custodian with respect to the Securities
in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would, be an Event of Default.
"Defeasance" has the meaning specified in Section 11.02.
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"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 3.1.
"Designated Senior Debt" means (i) any Senior Debt outstanding under the
Credit Agreement, (ii) Senior Debt outstanding under the Company's 9.25% Senior
Notes due 2008, its 7.125% Senior Notes due 2011, and its 7.75% Senior Notes due
2013 as such notes or the related indentures may be amended, restated,
supplemented, modified, renewed, refunded, replaced or refinanced, in whole or
in part, from time to time, and (iii) any particular Senior Debt if the
instrument creating or evidencing the same or the assumption or guarantee
thereof (or related agreements or documents to which the Company is a party)
expressly provides that such Indebtedness shall be "Designated Senior Debt" for
purposes of the Indenture (provided that such instrument, agreement or other
document may place limitations and conditions on the right of such Senior Debt
to exercise the rights of Designated Senior Debt).
"euro" or "euros" means the currency adopted by those nations
participating in the third stage of the economic and monetary union provisions
of the Treaty on European Union, signed at Maastricht on February 7, 1992.
"European Economic Area" means the member nations of the European Economic
Area pursuant to the Oporto Agreement on the European Economic Area dated May 2,
1992, as amended.
"European Union" means the member nations of the European Union
established by the Treaty of European Union, signed at Maastricht on February 2,
1992, which amended the Treaty of Rome establishing the European Community.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Convertible Subordinated Notes" means all of the Company's
outstanding indebtedness under its 5-3/4% Convertible Subordinated Notes due
2006, its 5% Convertible Subordinated Notes due 2007 and its 6.25% Convertible
Subordinated Notes due 2013.
"Existing Senior Subordinated Notes" means all of the Company's
outstanding indebtedness under its 10.50% Senior Subordinated Notes due 2009.
"Foreign Government Obligation" means with respect to Securities of any
series which are not denominated in the currency of the United States of America
(x) any security which is (i) a direct obligation of the government which issued
or caused to be issued the currency for the payment of which obligations its
full faith and credit is pledged or, with respect to Securities of any series
which are denominated in euros, a direct obligation of any member nation of the
European Union for the payment of which obligation the full faith and credit of
the respective nation is pledged so long as such nation has a credit rating at
least equal to that of the highest rated member nation of the European Economic
Area, or (ii) an obligation of a Person controlled or supervised by and acting
as an agency or instrumentality of a government specified in Clause (i) above
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the such government, which, in
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either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any Foreign
Government Obligation which is specified in Clause (x) above and held by such
bank for the account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any Foreign Government
Obligation which is so specified and held, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Foreign Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Securities" means a Security that is registered in the Register
and that is set forth in Exhibit A hereto, which is incorporated in and
expressly made a part of this Indenture.
"Global Securities Legend" means the legend labeled as such and that is
set forth in Exhibit A hereto, which is incorporated in and expressly made a
part of this Indenture.
"Holder" means a Person in whose name a Security of any series is
registered.
"Indebtedness" means, with respect to any Person, all obligations, whether
or not contingent, of such Person (i) (a) for borrowed money (including, but not
limited to, any indebtedness secured by a security interest, mortgage or other
lien on the assets of that Person that is (1) given to secure all or part of the
purchase price of property subject thereto, whether given to the vendor of such
property or to another, or (2) existing on property at the time of acquisition
thereof), (b) evidenced by a note, debenture, bond or other written instrument,
(c) under a lease required to be capitalized on the balance sheet of the lessee
under GAAP or under any lease or related document (including a purchase
agreement) that provides that such Person is contractually obligated to purchase
or cause a third party to purchase and thereby guarantee a minimum residual
value of the lease property to the lessor and the obligations of the Company
under such lease or related document to purchase or to cause a third party to
purchase such leased property, (d) in respect of letters of credit, bank
guarantees or bankers' acceptances (including reimbursement obligations with
respect to any of the foregoing), (e) with respect to Indebtedness secured by a
mortgage, pledge, lien, encumbrance, charge or adverse claim affecting title or
resulting in an encumbrance to which the property or assets of such Person are
subject, whether or not the obligation secured thereby shall have been assumed
by or shall otherwise be such Person's legal liability, (f) in respect of the
balance of deferred and unpaid purchase price of any property or assets, (g)
under interest rate or currency swap agreements, cap, floor and collar
agreements, spot and forward contracts and similar agreements and arrangements;
(ii) with respect to any obligation of others of the type described in the
preceding clause (i) or under clause (iii) below assumed by or guaranteed in any
manner by such Person through an agreement to purchase (including, without
limitation, "take or pay" and similar arrangements), contingent or
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otherwise (and the obligations of such Person under any such assumptions,
guarantees or other such arrangements); and (iii) any and all deferrals,
renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any of the foregoing.
"Indenture" means this instrument as originally executed 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 instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1; provided,
however, that if at any time more than one Person is acting as Trustee under
this Indenture due to the appointment of one or more separate Trustees for any
one or more separate series of Securities, "Indenture" shall mean, with respect
to such series of Securities for which any such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of particular
series of Securities for which such Person is Trustee established as
contemplated by Section 3.1, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee, but to which such person, as such Trustee, was not a party; provided,
further that in the event that this Indenture is supplemented or amended by one
or more indentures supplemental hereto which are only applicable to certain
series of Securities, the term "Indenture" for a particular series of Securities
shall only include the supplemental indentures applicable thereto.
"Interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"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 therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, repurchase at the option of the holder of such
Security or otherwise.
"Offering" means the offering of the Securities by the Company.
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"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 9.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 9.05 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
"Participant" means, with respect to the Depositary, a Person who has an
account with the Depositary.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof (including any
subdivision or ongoing business of any such entity or substantially all of the
assets of any such entity, subdivision or business).
"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 2.02.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Services Department of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"SEC" means the Securities and Exchange Commission.
"Senior Debt" means the principal of, premium, if any, and interest on,
rent under, and any other amounts payable on or in respect of any Indebtedness
of the Company (including, without limitation, any Obligations in respect of
such Indebtedness and, in the case of Designated Senior
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Debt, any interest accruing after the filing of a petition by or against the
Company under any bankruptcy law, whether or not allowed as a claim after such
filing in any proceeding under such bankruptcy law), whether outstanding on the
Issue Date or thereafter created, incurred, assumed, guaranteed or in effect
guaranteed by the Company (including all deferrals, renewals, extensions or
refundings of, or amendments, modifications or supplements to the foregoing);
provided, however, that Senior Debt does not include (t) Indebtedness evidenced
by the Securities, (u) the Existing Convertible Subordinated Notes, (v) the
Existing Senior Subordinated Notes, (w) any liability for federal, state, local
or other taxes owed or owing by the Company, (x) Indebtedness of the Company to
any Subsidiary of the Company except to the extent such Indebtedness is of a
type described in clause (ii) of the definition of Indebtedness, (y) trade
payables of the Company for goods, services or materials purchased in the
ordinary course of business (other than, to the extent they may otherwise
constitute trade payables, any obligations of the type described in clause (ii)
of the definition of Indebtedness), and (z) any particular Indebtedness in which
the instrument creating or evidencing the same expressly provides that such
Indebtedness shall not be senior in right of payment to, or is pari passu with,
or is subordinated or junior to, the Securities.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Act, as such Regulation is in effect on the date hereof assuming
that the Company were the "registrant" for purposes of such definition; provided
that in no event shall a "Significant Subsidiary" include (i) any direct or
indirect subsidiary of the Company created for the primary purpose of
facilitating one or more Receivable Programs or holding or purchasing inventory,
or (ii) any non-operating Subsidiary which does not have any liabilities to
Persons other than the Company or its Subsidiaries, or (iii) any Unrestricted
Subsidiary.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Trustee" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged. In order to have money available on a
payment date to pay principal or interest on the Securities, the U.S. Government
Obligations shall be payable as to principal or interest on or before such
payment date in such amounts as will provide the necessary money. U.S.
Government Obligations shall not be callable at the issuer's option.
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"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
Section 1.02 Other Definitions.
TERM DEFINED IN SECTION
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"Authentication Order"................................................ 2.02
"Covenant Defeasance"................................................. 8.03
"DTC"................................................................. 2.03
"Event of Default".................................................... 6.01
"Legal Defeasance".................................................... 8.02
"Paying Agent"........................................................ 2.03
"Registrar"........................................................... 2.03
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities;
"indenture security Holder" means a Holder of a Security;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Securities means the Company and any successor obligor
upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
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(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include
the singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement of successor sections or rules adopted
by the SEC from time to time.
ARTICLE 2
THE SECURITIES
Section 2.01 Forms Generally.
The Securities of each series shall be in substantially the form set forth
in Exhibit A, or in such other form as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution thereof. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 2.03 for the authentication and delivery of such
Securities. Any such Board Resolution or record of such action shall have
attached thereto a true and correct copy of the form of Security referred to
therein approved by or pursuant to such Board Resolution.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 2.02 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 2.03,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from Securities of any other series);
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(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section
2.07, 2.08, 2.11, 3.07 or 8.05 and except for any Securities which, pursuant to
Section 2.03, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other than
by a Board Resolution, the manner in which any election by the Company to redeem
the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of the Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which any Securities
of the series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any premium
or interest on any Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the United States of
America for any purpose;
(12) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency
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units other than that or those in which such Securities are stated to be
payable, the currency, currencies or currency units in which the principal of or
any premium or interest on such Securities as to which such election is made
shall be payable, the periods within which and the terms and conditions upon
which such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or which shall
be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in
any such case, the manner in which such amount deemed to be the principal amount
shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 11.02 or Section 11.03
or both such Sections, or any other defeasance provisions applicable to any
Securities of the series, and, if other than by a Board Resolution, the manner
in which any election by the Company to defease such Securities shall be
evidenced;
(16) if applicable, the terms of any right to convert or exchange
Securities of the series into shares of Common Stock of the Company or other
securities or property;
(17) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such case,
the respective Depositaries for such Global Securities, the form of any legend
or legends which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Exhibit A and any circumstances in addition to or in
lieu of those set forth in Section 2.07 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;
(18) any addition to or change in the Events of Default which applies to
any Securities of the series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof due
and payable pursuant to Section 6.02;
(19) any addition to or change in the covenants set forth in Article IV
which applies to Securities of the series;
(20) any Authenticating Agents, Paying Agents, Security Registrars or such
other agents necessary in connection with the issuance of the Securities of such
series, including, without limitation, Exchange Rate Agents and Calculation
Agents;
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(21) if applicable, the terms of any security that will be provided for a
series of Securities; and
(22) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section 8.03).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 2.03) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by this section. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 2.03 Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that office
at the time such Security is authenticated, the Security shall nevertheless be
valid.
No Security shall be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that such Security has
been authenticated under this Indenture.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 2.01 and
2.02, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, a copy of such Board Resolution, the Officers'
Certificate setting forth the terms of the series and an Opinion of Counsel,
with such Opinion of Counsel stating,
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(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.01, that such form
has been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 2.02, that such terms
have been established in conformity with the provisions of this Indenture;
and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
Notwithstanding the provisions of Section 2.02 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 2.02 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate any Security. An authenticating agent may authenticate any
Security whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.04 Registrar, Paying Agent and Conversion Agent.
The Company shall maintain an office or agency where Securities of any
series may be presented for registration of transfer or for exchange
("Registrar"), an office or agency where Securities of any series may be
presented for payment ("Paying Agent"), and an office or agency where Securities
may be presented for conversion, if applicable (the "Conversion Agent"). The
Registrar shall keep a register of the Securities of any series and of their
transfer and exchange. The Company may appoint one or more co-registrars, one or
more additional paying agents and one or more additional conversion agents. The
term "Registrar" includes any co-registrar, the term "Paying Agent" includes any
additional paying agent and the term "Conversion Agent" includes any
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additional conversion agent. The Company may change any Paying Agent, Registrar
or Conversion Agent without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent, Registrar or
Conversion Agent.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as the Registrar, Paying
Agent and Conversion Agent and to act as Custodian with respect to the Global
Securities.
Section 2.05 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or interest on Securities of any series, and will notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Securities.
Section 2.06.Holder Lists.
The Trustee of any series of Securities shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of all Holders of such series and shall otherwise comply
with TIA Section 312(a). If the Trustee is not the Registrar of such series, the
Company shall furnish to the Trustee at least seven Business Days before each
interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders of Securities of any series
and the Company shall otherwise comply with TIA Section 312(a).
Section 2.07 Transfer and Exchange
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, 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, of any authorized denominations and of like tenor and aggregate
principal amount.
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At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the 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 or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 2.11, 3.08 or 8.05 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 3.03 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (A) such Depositary (i) has
notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing
agency registered under the Exchange Act, (B) there shall have occurred
and be continuing an Event of Default with respect to such Global Security
or (C) there shall exist such circumstances, if any, in addition to or in
lieu of the foregoing as have been specified for this purpose as
contemplated by Section 2.02.
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(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Sections 2.08, 2.11 or
8.06 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a
nominee thereof.
Section 2.08 Replacement Securities.
If the holder of a Security of any series claims that such Security has
been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security of that series if the
Trustee's requirements are met. If required by the Trustee or the Company as a
condition of receiving a replacement Security, the holder of a Security must
provide a certificate of loss and an indemnity and/or an indemnity bond
sufficient, in the judgment of both the Company and the Trustee, to fully
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss, liability, cost or expense which any of them may suffer or incur if
the Security is replaced. The Company and the Trustee may charge the relevant
holder for their expenses in replacing any Security.
The Trustee or any authenticating agent may authenticate any such
substituted Security, and deliver the same upon the receipt of such security or
indemnity as the Trustee, the Company and, if applicable, such authenticating
agent may require. Upon the issuance of any substituted Security, 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
expenses connected therewith. In case any Security of a series which has matured
or is about to mature, or has been called for redemption pursuant to Article
III, shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Security of that series, pay or authorize the
payment of or convert or authorize the conversion of the same (without surrender
thereof except in the case of a mutilated Security), as the case may be, if the
applicant for such payment or conversion shall furnish to the Company, to the
Trustee and, if applicable, to the authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or connected with such substitution, and,
in case of destruction, loss or theft, evidence satisfactory to the Company, the
Trustee and, if applicable, any paying agent or conversion agent of the
destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security of any series is an additional obligation of
the Company and shall be entitled to all the benefits provided under this
Indenture equally and proportionately with all other Securities of that series
duly issued, authenticated and delivered hereunder.
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Section 2.09 Outstanding Securities.
The Securities of any series outstanding at any time are all the
Securities of such series authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation, those reductions in the interest
in a Global Security effected by the Trustee in accordance with the provisions
hereof, and those described in this Section as not outstanding. Except as set
forth in Section 2.09 hereof, a Security of any series does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Security.
If a Security of any series is replaced pursuant to Section 2.08 hereof,
it ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.
If the principal amount of any Security of any series is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Securities of any series payable on that date, then on and after that
date such Securities shall be deemed to be no longer outstanding and shall cease
to accrue interest.
Section 2.10 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of any series have concurred in any direction, waiver or consent,
Securities of that series owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities of that series
that the Trustee knows are so owned shall be so disregarded.
Section 2.11 Temporary Securities.
(a) Until certificates representing Securities of any series are ready for
delivery, the Company may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Securities of that series.
Temporary Securities shall be substantially in the form of certificated
Securities of that series but may have variations that the Company considers
appropriate for temporary Securities of that series and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Securities of any series in
exchange for temporary Securities of that series.
Holders of temporary Securities of any series shall be entitled to all of
the benefits of this Indenture.
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(b) Except for transfers made in accordance with Section 2.07, a Global
Security deposited with the Depositary or with the Trustee as custodian for the
Depositary shall be transferred to the beneficial owners thereof in the form of
certificated Securities of that series in definitive form only if such transfer
complies with Section 2.07 and (i) the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary for such Global Security or if
at any time such Depositary ceases to be a "clearing agency" registered under
the Exchange Act and a successor Depositary is not appointed by the Company
within 90 days of such notice, or (ii) an Event of Default has occurred and is
continuing.
(c) Any Global Security of any series or interest thereon that is
transferable to the beneficial owners thereof in the form of certificated
Securities of that series in definitive form shall, if held by the Depository,
be surrendered by the Depositary to the Trustee, without charge, and the Trustee
shall authenticate and deliver, upon such transfer of each portion of such
Global Security of that series, an equal aggregate principal amount of
Securities of that series of authorized denominations in the form of
certificated Securities of that series in definitive form. Any portion of a
Global Security transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $1,000 and any integral
multiple thereof and registered in such names as the Depositary shall direct.
(d) Prior to any transfer pursuant to Section 2.11(b), the registered
holder of a Global Security of any series may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a holder is entitled
to take under this Indenture or the Securities of that series.
(e) The Company will make available to the Trustee a reasonable supply of
certificated Securities of any series in definitive form without interest
coupons.
Section 2.12 Cancellation.
The Company at any time may deliver Securities of any series to the
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Securities of any series surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel
Securities of any series surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall destroy canceled Securities of
any series (subject to the record retention requirement of the Exchange Act).
Certification of the destruction of all canceled Securities shall be delivered
to the Company. The Company may not issue new Securities of any series to
replace Securities of such series that it has paid or that have been delivered
to the Trustee for cancellation.
Section 2.13 Defaulted Interest.
If the Company defaults in a payment of interest on Securities of any
series, it shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders of such security on a subsequent special record date. The Company
shall notify the Trustee in writing of the amount of defaulted interest proposed
to be paid on each Security and the date of the proposed payment. The Company
shall fix or cause to be fixed
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each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 2.02 for such Securities) in accordance
with this Article.
Section 3.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section
2.02 for such Securities. In case of any redemption at the election of the
Company of less than all the Securities of any series (including any such
redemption affecting only a single Security), 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 of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 3.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by lot, or in the Trustee's discretion, on
a pro-rata basis, provided that the unredeemed portion of the principal amount
of any Security shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If less than all
the Securities of such series and of a specified tenor are to be redeemed
(unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 30 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
and specified tenor not previously called for redemption in accordance with the
preceding sentence.
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If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 3.04 Notice of Redemption.
At least 15 days but not more than 60 days before a Redemption Date, the
Company shall mail by first class mail a notice of redemption to each holder
whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if any Security of any series is being redeemed in
part, the portion of the principal amount of such Security to be redeemed and
that, after the Redemption Date, upon surrender of such Security, a new Security
or Securities of the same series in principal amount equal to the unredeemed
portion will be issued in the name of the holder thereof;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(5) that interest on Securities called for redemption
and for which funds have been set apart for payment, ceases to accrue on and
after the Redemption Date (unless the Company defaults in the payment of the
Redemption Price or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture);
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(6) the paragraph of the Securities pursuant to which
the Securities called for redemption are being redeemed;
(7) the aggregate principal amount of Securities of that
series (if less than all) that are being redeemed;
(8) the CUSIP number of the Securities (provided that
the disclaimer permitted by Section 2.14 may be made);
(9) the name and address of the Paying Agent; and
(10) that in the case of Securities or portions thereof
called for redemption on a date that is also an Interest Payment Date, the
interest payment, due on such date shall be paid to the Person in whose name the
Security is registered at the close of business on the relevant Regular Record
Date.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been given, whether or not the holder receives such notice. In
any case, failure to give such notice by mail or any defect in the notice to the
holder of any Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any Security of
that series.
At the Company's request, the Trustee shall give notice of redemption in
the Company's name and at its expense.
Section 3.05 Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit with the
Trustee or with the Paying Agent money in immediately available funds sufficient
to pay the Redemption Price of and accrued interest on all Securities to be
redeemed on that date. The Trustee or the Paying Agent shall promptly return to
the Company any money not required for that purpose.
On and after the Redemption Date, unless the Company shall default in the
payment of the Redemption Price, interest will cease to accrue on the principal
amount of the Securities or portions thereof called for redemption and for which
funds have been set apart for payment and such Securities, or portions thereof,
shall cease after the close of business on the Business Day immediately
preceding the Redemption Date to be convertible into Common Stock and, except as
provided in this Section 3.05 and 8.04, such Securities, or portions thereof,
shall not be entitled to any benefit or security under this Indenture, and
the holders thereof shall have no right in respect of such Securities, or
portions thereof, except the right to receive the Redemption price thereof
and unpaid interest, to (but excluding) the Redemption Date. In the case of
Securities or portions thereof redeemed on a Redemption Date
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which is also an Interest Payment Date, the interest payment due on such
Interest Payment Date shall be paid to the Person in whose name the Security is
registered at the close of business on the relevant Regular Record Date.
Section 3.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 2.02, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 3.07 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part only, the Company
shall issue and the Trustee shall authenticate and deliver to the holder of a
Security a new Security of the same series equal in principal amount to the
unredeemed portion of the Security surrendered, at the expense of the Company,
except as specified in Section 2.07.
Section 3.08 Intentionally Omitted.
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ARTICLE 4
COVENANTS
Section 4.01 Payment of Securities.
The Company covenants and agrees for the benefit of each series of
Securities that it will pay or cause to be paid the principal of, premium, if
any, and interest on the Securities of that series in accordance with the terms
of the Securities of such series.
Section 4.02 Maintenance of Office or Agency.
The Company shall maintain or cause to be maintained for any series of
Securities in The Borough of Manhattan, The City of New York, an office or
agency (which may be an office of the Trustee or an Affiliate of the Trustee,
Registrar or co-registrar) where Securities of any series may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the 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 such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other offices
or agencies where Securities of any series may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in The
Borough of Manhattan, The City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03.
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Section 4.03 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Securities
is prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) The Company shall, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
Any failure of the Company to take any action within a period of time
explicitly or implicitly required by this Section 4.04 or Section 4.03 should be
deemed cured upon the Company's taking such action.
Section 4.04 Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Securities.
Section 4.05 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it shall not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law has been enacted.
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Section 4.06 Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company or any such Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of the Company
and its Subsidiaries; provided, however, that the Company shall not be required
to preserve any such right, license or franchise, or the corporate, partnership
or other existence of any of its Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders of the
Securities.
Section 4.07 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 any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, on or prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, 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.
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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 or any premium or
interest on any Security of any series and remaining unclaimed for a period
ending on the earlier of the date that is ten Business Days prior to the date
such money would escheat to the State or two years after such principal, premium
or interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, 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
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in each Place of Payment, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 4.08 Taxes.
The Company shall, and shall cause each of its subsidiaries to, pay prior
to delinquency all taxes, assessments and government levies; provided, however,
that the Company shall not be required to pay or cause to be paid any such tax,
assessment or levy (A) if the failure to do so will not, in the aggregate, have
a material adverse impact on the Company and its subsidiaries taken as a whole,
or (B) if the amount, applicability or validity is being contested in good faith
by appropriate proceedings.
Section 4.09 Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
Section 4.10 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 2.02 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Sections 2.02(19),
4.08 or 8.01(g) for the benefit of the Holders of such series if before the time
for such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until
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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.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
The Company shall not, directly or indirectly, consolidate or merge with
or into another Person (whether or not the Company is the surviving corporation)
or sell, assign, transfer, convey or otherwise dispose of all or substantially
all of its properties or assets, in one or more related transactions, to another
Person, unless (i) the Company is the surviving corporation or the Person formed
by or surviving any such consolidation or merger (if other than the Company) or
to which such sale, assignment, transfer, conveyance or other disposition shall
have been made is a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia, (ii) the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, conveyance or
other disposition shall have been made assumes all the obligations of the
Company under the Securities and this Indenture pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee, (iii) immediately
after such transaction no Default or Event of Default exists, and (iv) the
Company shall have delivered to the Trustee an Officer's Certificate stating
that such consolidation, merger, sale, assignment, transfer, conveyance or other
disposition complies with this Indenture. In addition, the Company shall not,
directly or indirectly, lease all or substantially all of its properties or
assets, in one or more related transactions, to any other Person. The provisions
of this Section 5.01 shall not be applicable to a sale, assignment, transfer,
conveyance or other disposition of assets by the Company to any of its
Subsidiaries.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), 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; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Securities except in the case of a sale of all
of the Company's assets that meets the requirements of Section 5.01 hereof.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest on Securities
of any series and such default continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on the Securities when the same becomes due and payable at
maturity, upon redemption (including in connection with an offer to purchase) or
otherwise;
(c) the Company defaults in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series.
(d) the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in this Indenture (other than a
covenant or warranty which has expressly been included in the indenture solely
for the benefit of series of Securities other than that series) for 60 days
after notice to the Company by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Securities of that series then outstanding
voting as a single class;
(e) within the meaning of Bankruptcy Law, the Company [or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary]:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due;
(f) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company [or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary] in an involuntary case;
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(ii) appoints a custodian of the Company [or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary] or for all or substantially all of
the property of the Company [or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary]; or
(iii) orders the liquidation of the Company [or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary];
and the order or decree remains unstayed and in effect for 60 consecutive days,
or
(g) any other Event of Default provided with respect to Securities of that
series in the Board Resolution, supplemental indenture or Officers' Certificate
establishing that series.
Section 6.02 Acceleration.
Unless the Board Resolution, supplemental indenture or Officers'
Certificate establishing such series provides otherwise, if any Event of Default
(other than an Event of Default specified in clause (e) or (f) of Section 6.01
hereof with respect to the Company, [any Significant Subsidiary or any group of
Significant Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary]) with respect to any series of securities at the time outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Securities of that series may declare
the principal amount of all the Securities of that series (or, if any Securities
of that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms thereof) to
be due and payable immediately. Upon any such declaration, the principal amount
of the Securities of that series shall become due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in clause (e) or
(f) of Section 6.01 hereof with respect to any series of securities at the time
outstanding occurs with respect to the Company, [any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary,] all outstanding principal amount of the
Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms hereof) shall be due and payable
immediately without further action or notice. The Holders of a majority in
aggregate principal amount of the then outstanding Securities of that series by
written notice to the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal, interest or premium that has become due solely because of the
acceleration) have been cured or waived.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any, and
interest on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Security in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the
then outstanding Securities of any series by notice to the Trustee may on behalf
of the Holders of all of the Securities of such series waive an existing Default
or Event of Default and its consequences hereunder, except a continuing Default
or Event of Default in the payment of the principal of, premium or interest on,
the Securities (including in connection with an offer to purchase) (provided,
however, that the Holders of a majority in aggregate principal amount of the
then outstanding Securities of such series may rescind an acceleration and its
consequences, including any related payment default that resulted from such
acceleration). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding
Securities of any series may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it relating to the Securities of that series.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture that the Trustee determines may be unduly prejudicial to the
rights of other Holders of Securities of that series or that may involve the
Trustee in personal liability.
Section 6.06 Limitation on Suits.
No Holder of any Security of any series may pursue a remedy with respect
to this Indenture or the Securities of that series unless:
(a) the Holder of a Security gives to the Trustee written notice of a
continuing Event of Default with respect to the Securities of that series;
(b) the Holders of at least 25% in principal amount of the then
outstanding Securities of that series make a written request to the Trustee to
pursue the remedy;
(c) such Holder of a Security or Holders of Securities offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
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(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Securities of that series do not give the Trustee
a direction inconsistent with the request.
A Holder of a Security of any series may not use this Indenture to
prejudice the rights of another Holder of a Security or to obtain a preference
or priority over another Holder of a Security of that series.
Section 6.07 Rights of Holders of Securities to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal, premium and interest on
the Security, on or after the respective due dates expressed in the Security
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing with respect to a series of Securities, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount of principal of, premium and interest remaining
unpaid on the Securities of that series and interest on overdue principal and,
to the extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Securities allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Securities), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder
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any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to the payment of the amounts then due and unpaid for
principal of and any premium, if any, and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal and any
premium, if any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities of any series pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Security pursuant to Section 6.07 hereof, or a suit by Holders of more than 10%
in principal amount of the then outstanding Securities of any series.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing with respect to
Securities of any series, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
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(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, 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
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) 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 is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to
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take in good faith in reliance on such Officers' Certificate or Opinion of
Counsel. 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 from liability in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities of any series, it
shall not be accountable for the Company's use of the proceeds from the
Securities of any series or any money paid to the Company or upon the Company's
direction under any provision of this Indenture, it shall not be responsible for
the use or application of any money received by any Paying Agent other than the
Trustee, and it shall not be responsible for any statement or recital herein or
any statement in the Securities of any series or any other document in
connection with the sale of the Securities of any series or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Securities of such
series a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, or interest on any Security of such series, the
Trustee may withhold
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the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Securities of such series.
Section 7.06 Reports by Trustee to Holders of the Securities.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Securities of any series remain
outstanding, the Trustee shall mail to the Holders of the Securities of such
series a brief report dated as of such reporting date that complies with TIA
Section 313(a) (but if no event described in TIA Section 313(a) has occurred
within the twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA Section 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA Section
313(c).
A copy of each report at the time of its mailing to the Holders of
Securities of any series shall be mailed to the Company and filed with the SEC
and each stock exchange on which the Securities of such series are listed in
accordance with TIA Section 313(d). The Company shall promptly notify the
Trustee when the Securities of such series are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder, as the
parties shall agree in writing from time to time. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon request for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) 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 or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
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To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Securities of any series on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(e) or (f) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to
the extent applicable.
Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Securities of any series may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding
Securities of such series may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder
for at least six months, fails to comply with Section 7.10, such Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
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A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business (including the trust created
by this Indenture) to, another corporation, the successor corporation without
any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has (or if the Trustee is a subsidiary of a bank holding
company, its parent shall have) a combined capital and surplus of at least $100
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section
310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
AMENDMENT, SUPPLEMENT AND WAIVER
Section 8.01 Without Consent of Holders of Securities.
The Company and the Trustee may amend this Indenture or the Securities or
enter into one or more indentures supplement hereto without notice to or the
consent of any holder of a Security for any series for the purposes of:
(a) curing any ambiguity or correcting or supplementing any defective or
inconsistent provision contained in this Indenture or making any other changes
in the provisions of this Indenture
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which the Company and the Trustee may deem necessary or desirable provided such
amendment does not materially and adversely affect the legal rights under the
Indenture of the holders of Securities;
(b) evidencing the succession of another Person to the Company and
providing for the assumption by such successor of the covenants of the Company
thereunder and in the Securities of any series as permitted by Section 5.01;
(c) to add any additional Events of Default for the benefit of the holders
of all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the benefit
of such series);
(d) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form;
(e) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such addition,
change or elimination (A) shall neither (i) apply to any Security of any series
created prior to the execution of such supplemental indenture and entitled to
the benefit of such provision nor (ii) modify the rights of the Holder of any
such Security with respect to such provision or (B) shall become effective only
when there is no such Security outstanding;
(f) to secure the Securities;
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.02;
(h) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 7.08;
(i) to make provision with respect to the conversion rights of Holders
pursuant to the requirements of Article XII, including providing for the
conversion of the securities into any security (other than the Common Stock of
the Company) or property of the Company; or
(j) to supplement any of the provisions of the Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and discharge of any
series of Securities pursuant to Articles VIII and XIV, provided that any such
action shall not adversely affect the interests of the Holders of Securities of
such series or any other series of Securities in any material respect.
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Section 8.02 With Consent of Holders of Securities.
Subject to Section 6.07, the Company and the Trustee may amend this
Indenture or the Securities or enter into one or more indentures supplement
hereto with the written consent of the holders of at least a majority in
principal amount of the then outstanding Securities of such series (including
consents obtained in connection with a tender offer or exchange offer for
Securities of that series).
Subject to Sections 6.04 and 6.07, the holders of a majority in principal
amount of the Securities then outstanding may also waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities of any series.
However, without the consent of each holder of a Security of any series
affected, an amendment or waiver under this Section may not (with respect to any
Securities of such series held by a non-consenting holder):
(a) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02, or
change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or modify the provisions of this Indenture with respect to the
subordination of such series of Securities in a manner adverse to the holders of
Securities of such series, or, in the case of Securities of any series that are
convertible into Securities or other securities of the Company, adversely affect
the right of holders to convert any of the Securities of such series other than
as provided in or pursuant to this Indenture;
(b) reduce the percentage in principal amount of the outstanding
Securities of any series, the consent of whose holders is required for any such
supplemental indenture, or the consent of whose holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture; or
(c) modify any of the provisions of this Section, Section 4.09 or Section
6.04, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any holder with
respect to changes in the references to "the Trustee" and concomitant changes in
this Section and Section 4.09, or the deletion of this proviso, in accordance
with the requirements of Sections 7.08 and 9.01(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 which modifies the
rights of the Holders of Securities of such series with
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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.
To secure a consent of the holders of Securities under this Section, it
shall not be necessary for such holders to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to holders of Securities of such series affected by the
amendment or waiver a notice briefly describing the amendment or waiver.
In order to amend any provisions of Article XI, holders of at least 75% in
aggregate principal amount of Securities of any series then outstanding must
consent to such amendment if such amendment would adversely affect the rights of
holders of Securities of such series.
Section 8.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities shall be
set forth in an amended or supplemental Indenture that complies with the TIA as
then in effect.
Section 8.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Security of any series is a continuing consent by the Holder
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to his or her Security or portion of a Security
if the Trustee receives the notice of revocation before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Securities have consented to the amendment or
waiver.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Securities of any series entitled to
consent to any amendment or waiver. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph, those
Persons who were holders of Securities of such series at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
consent to such amendment or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. No
consent shall be valid or effective for more than 90 days after such record date
unless consents from Holders of the principal amount of Securities of such
series required hereunder for such amendment or waiver to be effective shall
have also been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective it shall bind
every Holder of a Security of that series, unless it is of the type described in
clauses (a) through (d) of Section 9.02. In such case, the amendment or waiver
shall bind each Holder of a Security who has consented to it and
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every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security.
Section 8.05 Notation on or Exchange of Securities.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article VIII may, and shall if
required by the Trustee, bear a notation in the 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 so modified as to conform, in the
opinion of the Company and the Trustee, 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 without charge to
the Holders of the Securities of such series, except as specified in Section
2.07.
Section 8.06 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.
Section 8.07 Trustee Protected.
The Trustee shall sign any amendment or supplemental indenture authorized
pursuant to this Article VIII if such amendment or supplemental indenture does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing such
amendment or supplemental indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be valid and binding upon the Company in
accordance with its terms.
Section 8.08 Subordination Unimpaired.
No provision in any supplemental indenture that affects the superior
position of the holders of Senior Debt shall be effective against holders of
Senior Debt.
ARTICLE 9
MISCELLANEOUS
Section 9.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control.
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Section 9.02 Notices.
Any notice or communication by the Company or the Trustee to the others is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Amkor Technology, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
If to the Trustee:
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Corporate Trust Services
(Amkor Technology, Inc. - Non-Convertible Senior Subordinated
Debt Securities)
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery. Notwithstanding
the foregoing, notices to the Trustee shall be effective only upon receipt by a
Responsible Officer.
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Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
Section 9.03 Communication by Holders of Securities with Other Holders of
Securities.
Holders of any series may communicate pursuant to TIA Section 312(b) with
other Holders of such series with respect to their rights under this Indenture
or the Securities. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
Section 9.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 9.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 9.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
Section 9.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been satisfied.
Section 9.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 9.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Securities, this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Securities.
Section 9.08 Governing Law, Consent to Jurisdiction and Service of Process
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE SECURITIES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 9.09 Agent for Service; Submission to Jurisdiction.
Each of the parties hereto irrevocably agrees that any suit, action or
proceeding arising out of or relating to this Indenture or the Securities of any
series, or brought under federal or state securities laws or brought by the
Trustee, may be instituted in any federal or state court in the State of New
York, borough of Manhattan. The Company has irrevocably appointed CT Corporation
System, located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000 as its agent (the
"Authorized Agent") for service of process in any suit, action or proceeding
arising out of or relating to this Indenture and the Securities, or brought
under federal or state securities laws or brought by the Trustee, that may be
instituted in federal or state courts in the State of New York, borough of
Manhattan. The Company expressly consents to the jurisdiction of any such court
in respect of such action and waives any other requirements or objections to
personal jurisdiction with respect thereto. Such appointment shall be
irrevocable unless and until replaced by an agent reasonably acceptable to the
Trustee. The Company agrees to take any and all action, including the filing of
any and all documents and instruments that may be necessary to continue such
appointment in full force and effect as aforesaid.
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Service of process upon the Authorized Agent and written notice of such service
to the Company shall be deemed, in every respect, effective service of process
upon the Company.
Section 9.10 Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
Section 9.11 Severability.
In case any provision in this Indenture or in the Securities of any series
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 9.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section 9.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 9.14 Designated Senior Debt.
The Securities of any series under this Indenture shall be "Designated
Senior Debt" for purposes of the indenture governing the Company's 5.75%
Convertible Subordinated Notes due 2006, the 5.00% Convertible Subordinated
Notes due 2007 and the 6.25% Convertible Subordinated Notes due 2013.
ARTICLE 10
SINKING FUNDS
Section 10.01 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 2.02 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities 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
such Securities is herein referred to as an "optional sinking fund payment." If
provided for by the terms of any Securities, the cash amount of
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any sinking fund payment may be subject to reduction as provided in Section
10.02. Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of such Securities.
Section 10.02 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the 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, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 10.03 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 10.02 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.03 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 3.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.05 and 3.07.
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
Section 11.01 Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 11.02 or
Section 11.03 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 2.02 as being defeasible pursuant to such
Section 11.02 or 11.03, in accordance with any applicable requirements provided
pursuant to Section 2.02 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 2.02 for such Securities.
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Section 11.02 Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 11.04 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder:
(1) the rights of Holders of such Securities to receive, solely from
the trust fund described in Section 11.04 and as more fully set forth in
such Section, payments in respect of the principal of and any premium and
interest on such Securities when payments are due,
(2) the Company's obligations with respect to such Securities under
Sections 2.07, 2.08, 2.11, 4.02 and 4.07,
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, and
(4) this Article.
Subject to compliance with this Article, the Company may exercise its
option (if any) to have this Section applied to any Securities notwithstanding
the prior exercise of its option (if any) to have Section 11.03 applied to such
Securities.
Section 11.03 Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be,
(1) the Company shall be released from its obligations under Section
4.08 and any covenants provided pursuant to Sections 2.02(19), 6.01(d) or
6.01(g) or for the benefit of the Holders of such Securities and
(2) the occurrence of any event specified in Section 6.01(d) (with
respect to any of Section 4.08 and any such covenants provided pursuant to
Section 2.02(19), 6.01(d) or 6.01(g) shall be deemed not to be or result
in an Event of Default,
in each case with respect to such Securities or any series of Securities as
provided in this Section on and after the date the conditions set forth in
Section 11.04 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such Securities,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case
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of Section 6.01(d), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Section 11.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 11.02
or Section 11.03 to any Securities or any series of Securities, as the case may
be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 7.10 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such
Securities,
(A) in the case of Securities of a series denominated in
currency of the United States of America,
(i) cash in currency of the United States of America in
an amount, or
(ii) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than
one day before the due date of any payment, an amount in cash,
or
(iii) a combination thereof, or
(B) in the case of Securities of a series denominated in
currency other than that of the United States of America,
(i) cash in the currency in which such series of
Securities is denominated in an amount, or
(ii) Foreign Government Obligations which through the
scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than
one day before the due date of any payment, an amount in cash,
or
(iii) a combination thereof,
in each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or any such other qualifying trustee) to pay and
discharge, the principal of and any premium and interest on such
Securities on the
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respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities.
(2) In the event of an election to have Section 11.02 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable Federal income tax
law, in either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 11.03 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 6.01(e)
and (f), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning
of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
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(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
Section 11.05 Deposited Money, U.S. Government Obligations and Foreign
Government Obligations to be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 4.07, all
money, U.S. Government Obligations and Foreign Government Obligations (including
the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 13.6, the Trustee and any such
other trustee are referred to collectively as the "Trustee") pursuant to Section
11.04 in respect of any Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held
in trust need not be segregated from other funds except to the extent required
by law. The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations or
Foreign Government Obligations deposited pursuant to Section 11.04 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of Outstanding
Securities. Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money, U.S. Government Obligations or Foreign Government Obligations
held by it as provided in Section 11.04 with respect to any Securities which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.
Section 11.06 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 11.02 or 11.03 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 11.05 with respect to such
Securities in accordance with this Article; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any such
Security following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
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ARTICLE 12
[INTENTIONALLY OMITTED]
ARTICLE 13
SUBORDINATION
Section 13.01 Agreement to Subordinate.
Except as otherwise provided in a supplemental indenture or pursuant to
Section 2.02, the Company agrees, and each holder of Securities issued hereunder
by accepting a Security agrees, that the indebtedness evidenced by the Security
will be subordinated in right of payment, to the extent and in the manner
provided in this Article XIII, to the prior payment in full in cash or payment
satisfactory to holders of Senior Debt of all Senior Debt (whether outstanding
on the Issue Date or thereafter created, incurred, assumed or guaranteed), and
that the subordination is for the benefit of the holders of Senior Debt. The
Company agrees, and each holder of Securities by accepting a Security agrees,
that any indebtedness evidenced by the Security will be pari passu in right of
payment to the Existing Convertible Notes.
Section 13.02 Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, in
an assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities:
(a) holders of Senior Debt shall be entitled to receive payment in full of
all Obligations due in respect of such Senior Debt (including interest, after
the commencement of any such proceeding at the rate specified in the applicable
Senior Debt) in cash or other payment satisfactory to the holders of the Senior
Debt before holders of any Securities would be entitled to receive any payment
with respect to the Securities of any series; and
(b) until all Senior Debt is paid in full in cash or other payment
satisfactory to the holders of the Senior Debt, any distribution to which
holders of Securities of any series would be entitled but for this Article XIII
shall be made to holders of Senior Debt, as their interests may appear.
Section 13.03 Default on Senior Debt and/or Designated Senior Debt.
No payment or distribution may be made by the Company to the Trustee or
any holder of Securities of any series in respect of Obligations with respect to
Securities of any series and the Company may not acquire from the Trustee or any
holder of Securities any Securities until all Senior Debt has been paid in full
in cash or other payment satisfactory to the holders of the Senior Debt if:
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(a) a default in the payment of any principal of, premium, if any,
interest, rent or other Obligations in respect of Senior Debt occurs and is
continuing beyond any applicable grace period in the agreement, indenture or
other document governing such Senior Debt; or
(b) a default, other than a payment default, on Designated Senior Debt
occurs and is continuing that then permits holders of such Designated Senior
Debt to accelerate its maturity and the Trustee receives a notice of the default
(a "Payment Blockage Notice") from a Person who may give it pursuant to Section
13.11 hereof.
If the Trustee receives any Payment Blockage Notice pursuant to Section
13.03 (ii) hereof, no subsequent Payment Blockage Notice shall be effective for
purposes of such Section unless and until at least 365 days shall have elapsed
since the effectiveness of the immediately prior Payment Blockage Notice. No
nonpayment default that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice.
The Company may and shall resume payments on and distributions in respect
of the Securities and may acquire them upon the earlier of:
(a) in the case of a payment default, upon the date upon which the default
is cured or waived or ceases to exist, or
(b) in the case of a nonpayment default referred to in Section 13.03(ii)
hereof, the earlier of the date upon which the default is cured or waived ceases
to exist or 179 days after notice is received if the maturity of such Designated
Senior Debt has not been accelerated,
if this Article XIII otherwise permits the payment, distribution or acquisition
at the time of such payment or acquisition.
Section 13.04 Acceleration of Securities.
In the event of the acceleration of the Securities because of an Event of
Default, the Company may not make any payment or distribution to the Trustee or
any holder of Securities in respect of Obligations with respect to Securities
and may not acquire or purchase from the Trustee or any holder of Securities any
Securities until all Senior Debt has been paid in full in cash or other payment
satisfactory to the holders of Senior Debt or such acceleration is rescinded in
accordance with the terms of this Indenture.
If payment of the Securities is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify holders of Senior Debt
or trustee(s) of such Senior Debt of the acceleration.
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Section 13.05 When Distribution Must Be Paid Over.
In the event that the Trustee, any holder of Securities or any other
Person receives any payment or distributions of assets of the Company of any
kind with respect to the Securities in contravention of any terms contained in
this Indenture, whether in cash, property or securities, including, without
limitation by way of set-off or otherwise, then such payment shall be held by
the recipient in trust for the benefit of holders of Senior Debt, and shall be
immediately paid over and delivered to the holders of Senior Debt or the
representative(s), to the extent necessary to make payment in full of all Senior
Debt remaining unpaid, after giving effect to any concurrent payment or
distribution or provision therefore, to or for the holders of Senior Debt;
provided that the foregoing shall apply to the Trustee only if the Trustee has
actual knowledge (as determined in accordance with Section 13.11) that such
payment or distribution is prohibited by this Indenture.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article XIII, and no implied covenants or obligations with respect
to the holders of Senior Debt 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 Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of holders of Securities or
the Company or any other Person money or assets to which any holders of Senior
Debt shall be entitled by virtue of this Article XIII, except if such payment is
made as a result of the willful misconduct or gross negligence of the Trustee.
Section 13.06 Notice by Company.
The Company shall promptly notify the Trustee of any facts known to the
Company that would cause a payment of any Obligations with respect to the
Securities or the purchase of any Securities by the Company to violate this
Article XIII, but failure to give such notice shall not affect the subordination
of the Securities to the Senior Debt as provided in this Article XIII.
Section 13.07 Subrogation.
After all Senior Debt is paid in full and until the Securities are paid in
full, holders of Securities shall be subrogated (equally and ratably with all
other indebtedness pari passu with the Securities) to the rights of holders of
Senior Debt to receive distributions applicable to Senior Debt to the extent
that distributions otherwise payable to the holders of Securities have been
applied to the payment of Senior Debt. A distribution made under this Article
XIII to holders of Senior Debt that otherwise would have been made to holders of
Securities is not, as between the Company and holders of Securities, a payment
by the Company on the Securities.
Section 13.08 Relative Rights.
This Article XIII defines the relative rights of holders of Securities and
holders of Senior Debt. Nothing in this Indenture shall:
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(a) impair, as between the Company and holders of Securities, the
obligation of the Company, which is absolute and unconditional, to pay principal
of, premium, if any, and interest on the Securities in accordance with their
terms;
(b) affect the relative rights of holders of Securities and creditors
(other than with respect to Senior Debt) of the Company, other than their rights
in relation to holders of Senior Debt; or
(c) prevent the Trustee or any holder of Securities from exercising its
available remedies upon a Default or Event of Default, subject to the rights of
holders and owners of Senior Debt to receive distributions and payments
otherwise payable to holders of Securities.
If the Company fails because of this Article XIII to pay principal of or
interest on a Security on the due date, the failure is still a Default or Event
of Default.
Section 13.09 Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination of the
indebtedness evidenced by the Securities shall be impaired by any act or failure
to act by the Company or any holder of Securities or by the failure of the
Company or any such holder to comply with this Indenture.
Section 13.10 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to in
this Article XIII, the Trustee and the holders of Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the holders
of Securities for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Debt 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 XIII.
Section 13.11 Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article XIII or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment or
distribution by the Trustee (other than pursuant to Section 13.04), and the
Trustee may continue to make payments on the Securities, unless a Trust Officer
shall have received at least two Business Days prior to the date of such payment
or distribution written notice of facts that would cause such payment or
distribution with respect to the Securities to violate this Article XIII. Only
the Company or a Representative may give the notice.
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Nothing in this Article XIII shall impair the claims of, or payments to,
the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
Section 13.12 Authorization to Effect Subordination.
Each holder of a Security by the holder's acceptance thereof authorizes
and directs the Trustee on the holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article XIII, and appoints the Trustee to act as the holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.09 hereof at least 30 days before the expiration of the time to file
such claim, the holders of any Senior Debt or their Representatives are hereby
authorized to file an appropriate claim for and on behalf of the holders of the
Securities.
Section 13.13 Article Applicable to Paying Agents.
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 XIII shall in such case (unless the context otherwise
requires) 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 XIII in addition to or in place of the Trustee; provided,
however, that the second and third paragraphs of Section 13.11 shall not apply
to the Company or any Subsidiary of the Company if it or such Subsidiary acts as
Paying Agent.
Section 13.14 Senior Debt Entitled to Rely.
The holders of Senior Debt shall have the right to rely upon this Article
XIII, and no amendment or modification of the provisions contained herein shall
diminish the rights of such holders unless such holders shall have agreed in
writing thereto.
Section 13.15 Permitted Payments.
Notwithstanding anything to the contrary in this Article XIII, the holders
of Securities may receive and retain at any time on or prior to the Maturity
Date (i) securities that are subordinated to at least the same extent as the
Securities to (a) Senior Debt and (b) any securities issued in exchange for
Senior Debt and (ii) payments and other distributions made from any trust
created pursuant to Section 14.01 hereof.
Section 13.16 Certain Conversions Deemed Payment.
For the purposes of this Article XIII only, (1) the issuance and delivery
of junior securities upon conversion of Securities in accordance with Article
XII shall not be deemed to constitute a
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payment or distribution on account of the principal of (or premium, if any) or
interest on Securities or on account of the purchase or other acquisition of
Securities, and (2) the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion of a Security shall be
deemed to constitute payment on account of the principal of such Security. For
the purposes of this Section 13.16, the term "junior securities" means (a)
shares of any stock of any class of the Company, or (b) securities of the
Company which are subordinated in right of payment to all Senior Debt which may
be outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article.
ARTICLE 14
SATISFACTION AND DISCHARGE OF INDENTURE
Section 14.01 Discharge of Indenture.
When (a) the Company delivers to the Trustee for cancellation all
Securities theretofore authenticated (other than any other Securities which have
been destroyed, lost or stolen and in lieu of or in substitution for which other
Securities have been authenticated and delivered) and not theretofore canceled,
or (b) all the Securities not theretofore canceled or delivered to the Trustee
for cancellation have become due and payable, or are by their terms will become
due and payable at their Stated Maturity within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company deposits with the Trustee,
in trust, amounts sufficient to pay at Stated Maturity or upon the Redemption
Date of all of the Securities (other than any Securities which have been
mutilated, destroyed, lost or stolen and in lieu of or in substitution for which
other Securities have been authenticated and delivered) not theretofore canceled
or delivered to the Trustee for cancellation, including principal and premium,
if any, and interest due or to become due to such date of Stated Maturity or
Redemption Date, as the case may be, and if in either case the Company also
pays, or causes to be paid, all other sums payable hereunder by the Company,
then this Indenture shall cease to be of further effect (except as to (i) rights
of registration of transfer, substitution, replacement and exchange and
conversion of Securities, (ii) rights hereunder of holders of Securities to
receive payments of principal of and premium, if any, and interest on, the
Securities, (iii) the obligations under Sections 2.04 and 14.05 hereof and (iv)
the rights, obligations and immunities of the Trustee hereunder), and the
Trustee, on demand of the Company accompanied by an Officers' Certificate and an
Opinion of Counsel as required by Section 9.04 and at the Company's cost and
expense, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture; the Company, however, hereby agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred by
the Trustee and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture or the
Securities.
-56-
Section 14.02 Deposited Monies to be Held in Trust by Trustee.
Subject to Section 14.04, all monies deposited with the Trustee pursuant
to Section 14.01 shall be held in trust and applied by it to the payment,
notwithstanding the provisions of Article XI, either directly or through the
Paying Agent, to the holders of the particular Securities for the payment or
redemption of which such monies have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest, and premium, if
any.
Section 14.03 Paying Agent to Repay Monies Held.
Upon the satisfaction and discharge of this Indenture, all monies then
held by any Paying Agent (other than the Trustee) shall, upon the Company's
demand, be repaid to it or paid to the Trustee, and thereupon such Paying Agent
shall be released from all further liability with respect to such monies.
Section 14.04 Return of Unclaimed Monies.
Subject to the requirements of applicable law, any monies deposited with
or paid to the Trustee for payment of the principal of, premium, if any, or
interest on Securities and not applied but remaining unclaimed by the holders
thereof for two years after the date upon which the principal of, premium, if
any, or interest on such Securities, as the case may be, have become due and
payable, shall be repaid to the Company by the Trustee on demand; provided,
however, that the Company, or the Trustee at the request of the Company, shall
have first caused notice of such payment to the Company to be mailed to each
holder of a Security entitled thereto no less than 30 days prior to such payment
and all liability of the Trustee shall thereupon cease with respect to such
monies; and the holder of any of the Securities shall thereafter look only to
the Company for any payment which such holder may be entitled to collect unless
an applicable abandoned property law designates another Person.
Section 14.05 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 14.02 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 14.01 until such time as the Trustee or the Paying Agent is permitted to
apply all such money in accordance with Section 14.02; provided, however, that
if the Company makes any payment of interest on or principal of any Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the holders thereof to receive such payment from the money held
by the Trustee or Paying Agent.
[Signatures on following page]
-57-
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed and attested, all as of the date first above written, signifying their
agreement contained in this Indenture.
AMKOR TECHNOLOGY, INC.
By: ____________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By: ____________________________________
Name:
Title:
EXHIBIT A
[FACE OF SECURITY]
[GLOBAL SECURITIES LEGEND]
The following legend shall appear on the face of each Global Security.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND
ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.]
[The following legend shall appear on the face of each Global Security for
which The Depository Trust Company is to be the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY THE AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OR DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED SECURITIES
IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE
INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OR SUCH SUCCESSOR
DEPOSITARY.]
A-1
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE REGULATIONS
THEREUNDER.]
AMKOR TECHNOLOGY, INC.
________________________________________________________________________________
NO. __________ $ __________
CUSIP: ____________
Amkor Technology, Inc., a corporation duly organized and existing under
the laws of Delaware (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ____________, or registered assigns, the
principal sum of _____________ Dollars on _____________________________ [IF THE
SECURITY IS TO BEAR INTEREST PRIOR TO MATURITY, INSERT --, and to pay interest
thereon from __________ or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on ___________ and
__________ in each year, commencing _________, at the rate of ___% per annum,
until the principal hereof is paid or made available for payment [IF APPLICABLE,
INSERT --, provided that any principal and premium, and any such installment of
interest, which is overdue shall bear interest at the rate of ___% per annum (to
the extent that the payment of such interest shall be legally enforceable), from
the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the ______ or
______ (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ___% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or
A-2
made available for payment. Interest on any overdue principal or premium shall
be payable on demand. [Any such interest on overdue principal or premium which
is not paid on demand shall bear interest at the rate of ___% per annum (to the
extent that the payment of such interest on interest shall be legally
enforceable), from the date of such demand until the amount so demanded is paid
or made available for payment. Interest on any overdue interest shall be payable
on demand.]]
Payment of the principal of (and premium, if any) and [IF APPLICABLE,
INSERT -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in _______, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [IF APPLICABLE, INSERT --;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: ________________________ AMKOR TECHNOLOGY, INC.
By: ______________________________
Title: ___________________________
ATTEST:
______________________________________________
This is one of the Securities described in the
within mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: _________________________
Authorized Signatory
A-3
FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of __________ (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Company and U.S. Bank National Association, as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture and all indentures
supplemental thereto for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [IF APPLICABLE, INSERT --, limited in aggregate
principal amount to $________].
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than [IF APPLICABLE, INSERT -- 30] days' notice by
mail, [IF APPLICABLE, INSERT-- (1) on __________ in any year commencing with the
year ________ and ending with the year ________ through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [IF APPLICABLE, INSERT-- on or after __________,
20__], as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [IF APPLICABLE, INSERT -- on or before __________, ___%, and if
redeemed] during the 12-month period beginning ____________ of the years
indicated,
YEAR REDEMPTION PRICE YEAR REDEMPTION PRICE
----------- ----------------- ---- ----------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than [if applicable, insert 30] days' notice by mail,
(1) on __________ in any year commencing with the year _____ and ending with the
year _____ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [IF APPLICABLE, INSERT -- on or after __________], as a
whole or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed
A-4
as percentages of the principal amount) set forth in the table below: If
redeemed during the 12-month period beginning __________ of the years indicated,
REDEMPTION PRICE REDEMPTION PRICE
FOR REDEMPTION THROUGH FOR REDEMPTION THROUGH
OPERATION OF THE SINKING OPERATION OF THE SINKING
YEAR FUND FUND
--------------- ------------------------ --------------------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[IF APPLICABLE, INSERT -- Notwithstanding the foregoing, the Company may
not, prior to __________, redeem any Securities of this series as contemplated
by [IF APPLICABLE, INSERT -- Clause (2) of] the preceding paragraph as a part
of, or in anticipation of, any refunding operation by the application, directly
or indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ___% per annum.]
[IF APPLICABLE, INSERT -- The sinking fund for this series provides for
the redemption on __________ in each year beginning with the year ______ and
ending with the year ______ of [IF APPLICABLE, INSERT -- not less than $_______
("mandatory sinking fund") and not more than] $_______ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [IF APPLICABLE, INSERT --
mandatory] sinking fund payments may be credited against subsequent [IF
APPLICABLE, INSERT -- mandatory] sinking fund payments otherwise required to be
made [IF APPLICABLE, INSERT --, in the inverse order in which they become due].]
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND, INSERT -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[IF APPLICABLE, INSERT -- The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities
A-5
of this series may be declared due and payable in the manner and with the
effect provided in the Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- INSERT FORMULA FOR DETERMINING THE
AMOUNT. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of more than 50% in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
A-6
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $______ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
A-7
