EXHIBIT 4.2
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THERMO INSTRUMENT SYSTEMS INC.,
Issuer
and
THERMO ELECTRON CORPORATION,
Guarantor
to
BANKERS TRUST COMPANY,
Trustee
INDENTURE
Dated as of ________, 1997
SUBORDINATED DEBT SECURITIES
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Reconciliation and Tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act") and Indenture
Trust Indenture Act Section Indenture Section
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Section 310(a)(1).....................................607
(a)(2)...............................................607
(b)..................................................608
Section 311...........................................612
Section 312(a)........................................701
(b)..................................................702
(c)..................................................702
Section 313(a)........................................703
(b)(2)...............................................703
(c)..................................................703
(d)..................................................703
Section 314(a)........................................704
(c)(1)...............................................102
(c)(2)...............................................102
(e)..................................................102
(f)..................................................102
Section 315(a)........................................601
(b)...................................................602
(c)..............................................601, 602
(d)...................................................601
(e)...................................................515
Section 316(a)........................................101
(a)(1)(A).......................................502, 512
(a)(1)(B)............................................513
(b)..................................................508
Section 317(a)(1).....................................503
(a)(2)...............................................504
(b).................................................1003
Section 318(a)........................................108
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust Indenture Act,
which provides that the provisions of Sections 310 to and including 317 are a
part of and govern every qualified indenture, whether or not physically
contained herein.
TABLE OF CONTENTS
ARTICLE ONE: DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..........................2
Section 101. Definitions...................................................................2
Section 102. Compliance Certificates and Opinions.........................................16
Section 103. Form of Documents Delivered to Trustee.......................................16
Section 104. Acts of Holders..............................................................17
Section 105. Notices, Etc. to Trustee, Company and Guarantor..............................19
Section 106. Notice to Holders of Securities; Waiver......................................20
Section 107. Language of Notices..........................................................21
Section 108. Conflict with Trust Indenture Act............................................21
Section 109. Effect of Headings and Table of Contents.....................................21
Section 110. Successors and Assigns.......................................................21
Section 111. Separability Clause..........................................................21
Section 112. Benefits of Indenture........................................................21
Section 113. Governing Law................................................................21
Section 114. Legal Holidays...............................................................22
Section 115. Taxes........................................................................22
ARTICLE TWO: SECURITIES AND GUARANTEE FORMS..................................................23
Section 201. Forms Generally..............................................................23
Section 202. Guarantee by Guarantor; Form of Guarantee....................................23
Section 203. Form of Trustee's Certificate of Authentication..............................24
Section 204. Securities in Global Form....................................................24
Section 205. Form of Conversion Notice....................................................25
ARTICLE THREE: THE SECURITIES................................................................25
Section 301. Amount Unlimited; Issuable in Series.........................................25
Section 302. Currency; Denominations......................................................29
Section 303. Execution, Authentication, Delivery and Dating...............................29
Section 304. Temporary Securities.........................................................31
Section 305. Registration, Transfer and Exchange..........................................33
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.............................37
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved.........................39
Section 308. Persons Deemed Owners........................................................41
Section 309. Cancellation.................................................................42
Section 310. Computation of Interest......................................................42
Section 311. CUSIP Numbers................................................................42
Section 312. Notification of Withholding..................................................43
ARTICLE FOUR: SATISFACTION AND DISCHARGE OF INDENTURE........................................44
Section 401. Satisfaction and Discharge...................................................44
Section 402. Defeasance and Covenant Defeasance...........................................45
Section 403. Application of Trust Money...................................................49
ARTICLE FIVE: REMEDIES.......................................................................50
Section 501. Events of Default............................................................50
Section 502. Acceleration of Maturity; Rescission and Annulment...........................52
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee..............53
Section 504. Trustee May File Proofs of Claim.............................................54
Section 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.......55
Section 506. Application of Money Collected...............................................55
Section 507. Limitations on Suits.........................................................55
Section 508. Unconditional Right of Holders to Receive Principal and Any
Premium, Interest and Additional Amounts..............................56
Section 509. Restoration of Rights and Remedies...........................................56
Section 510. Rights and Remedies Cumulative...............................................57
Section 511. Delay or Omission not Waiver.................................................57
Section 512. Control by Holders of Securities.............................................57
Section 513. Waiver of Past Defaults......................................................57
Section 514. Waiver of Usury, Stay or Extension Laws......................................58
Section 515. Undertaking for Costs........................................................58
ARTICLE SIX: THE TRUSTEE......................................................................59
Section 601. Certain Rights of Trustee; Certain Duties and Responsibilities...............59
Section 602. Notice of Defaults...........................................................60
Section 603. Not Responsible for Recitals or Issuance of Securities.......................61
Section 604. May Hold Securities; Act as Trustee Under Other Indenture....................61
Section 605. Money Held in Trust..........................................................61
Section 606. Compensation and Reimbursement...............................................62
Section 607. Corporate Trustee Required; Eligibility......................................62
Section 608. Resignation and Removal; Appointment of Successor............................63
Section 609. Acceptance of Appointment by Successor.......................................64
Section 610. Merger, Conversion, Consolidation or Succession to Business..................65
Section 611. Preferential Collection of Claims Against Company............................66
Section 612. Appointment of Authenticating Agent..........................................66
Section 613. Conflicting Interests........................................................68
Section 614. Protection of Agents.........................................................68
ARTICLE SEVEN: HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR....................69
Section 701. Company and Guarantor to Furnish Trustee Names and Addresses of Holders......69
Section 702. Preservation of Information; Communications to Holders.......................69
Section 703. Reports by Trustee...........................................................69
Section 704. Reports by Company and Guarantor.............................................70
ARTICLE EIGHT: CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..................................71
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Section 801. Company or Guarantor May Consolidate, Etc., Only on Certain Terms............71
Section 802. Successor Corporation Substituted............................................72
ARTICLE NINE: SUPPLEMENTAL INDENTURES........................................................72
Section 901. Supplemental Indentures Without Consent of Holders...........................72
Section 902. Supplemental Indentures With Consent of Holders..............................74
Section 903. Execution of Supplemental Indentures.........................................75
Section 904. Effect of Supplemental Indentures............................................75
Section 905. Reference in Securities to Supplemental Indentures...........................75
Section 906. Conformity with Trust Indenture Act..........................................76
ARTICLE TEN: COVENANTS........................................................................76
Section 1001. Payment of Principal, Any Premium, Interest and Additional Amounts..........76
Section 1002. Maintenance of Office or Agency.............................................76
Section 1003. Money for Securities Payments to be Held in Trust...........................78
Section 1004. Additional Amounts..........................................................79
Section 1005. Statement as to Compliance..................................................83
Section 1006. Corporate Existence.........................................................83
ARTICLE ELEVEN: REDEMPTION OF SECURITIES.....................................................83
Section 1101. Applicability of Article....................................................83
Section 1102. Election to Redeem; Notice to Trustee.......................................83
Section 1103. Selection by Trustee of Securities to be Redeemed...........................85
Section 1104. Notice of Redemption........................................................86
Section 1105. Deposit of Redemption Price.................................................87
Section 1106. Securities Payable on Redemption Date.......................................88
Section 1107. Securities Redeemed in Part.................................................88
ARTICLE TWELVE: CONVERSION OF SECURITIES.....................................................89
Section 1201. Conversion Privilege and Conversion Price...................................89
Section 1202. Exercise of Conversion Privilege............................................91
Section 1203. Fractions of Shares.........................................................92
Section 1204. Adjustment of Conversion Price..............................................92
Section 1205. Notice of Adjustments of Conversion Price...................................95
Section 1206. Notice of Certain Corporate Action..........................................95
Section 1207. Company to Reserve Common Stock.............................................96
Section 1208. Taxes on Conversions........................................................96
Section 1209. Covenant as to Common Stock.................................................97
Section 1210. Cancellation of Converted Securities........................................97
Section 1211. Provision in Case of Consolidation, Merger or Sale of Assets................97
Section 1212. Compliance with Governmental Requirements...................................97
ARTICLE THIRTEEN: SINKING FUNDS..............................................................98
Section 1301. Applicability of Article....................................................98
Section 1302. Satisfaction of Sinking Fund Payments With Securities.......................98
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Section 1303. Redemption of Securities for Sinking Fund...................................99
ARTICLE FOURTEEN: GUARANTEES.................................................................99
Section 1401. Guarantees..................................................................99
Section 1402. Execution and Delivery of Guarantees.......................................100
Section 1403. Guarantees Optional........................................................101
ARTICLE FIFTEEN: REPAYMENT AT THE OPTION OF HOLDERS.........................................101
Section 1501. Applicability Of Article...................................................101
Section 1502. Repayment Of Securities....................................................101
Section 1503. Notice of Repayment.........................................................102
Section 1504. Exercise Of Option.........................................................102
Section 1505. When Securities Presented For Repayment Become Due And Payable.............103
Section 1506. Securities Repaid In Part...................................................104
ARTICLE SIXTEEN: MEETINGS OF HOLDERS OF SECURITIES..........................................104
Section 1601. Purposes for Which Meetings May Be Called..................................104
Section 1602. Call, Notice and Place of Meetings.........................................104
Section 1603. Persons Entitled to Vote at Meetings.......................................105
Section 1604. Quorum; Action.............................................................105
Section 1605. Determination of Voting Rights; Conduct and Adjournment of Meetings........106
Section 1606. Counting Votes and Recording Action of Meetings............................107
ARTICLE SEVENTEEN: SUBORDINATION OF SECURITIES..............................................107
Section 1701. Securities Subordinate to Senior Indebtedness..............................107
Section 1702. Payment Over of Proceeds Upon Dissolution, Etc.............................108
Section 1703. No Payment When Senior Indebtedness in Default.............................109
Section 1704. Payment Permitted If No Default............................................110
Section 1705. Subrogation to Rights of Holders of Senior Indebtedness....................110
Section 1706. Provisions Solely to Define Relative Rights................................110
Section 1707. Trustee to Effectuate Subordination........................................111
Section 1708. No Waiver of Subordination Provisions......................................111
Section 1709. Notice to Trustee..........................................................111
Section 1710. Reliance on Judicial Order or Certificate of Liquidating Agent.............112
Section 1711. Trustee Not Fiduciary for Holders of Senior Indebtedness...................112
Section 1712. Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee's Rights..................................................112
Section 1713. Article Applicable to Paying Agents........................................113
ARTICLE EIGHTEEN: SUBORDINATION OF GUARANTEES...............................................113
Section 1801. Guarantees Subordinate to Senior Guarantor Indebtedness....................113
Section 1802. Payment Over of Proceeds Upon Dissolution, Etc.............................113
Section 1803. No Payment When Senior Indebtedness in Default.............................114
Section 1804. Payment Permitted If No Default............................................115
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Section 1805. Subrogation to Rights of Holders of Senior Guarantor Indebtedness..........115
Section 1806. Provisions Solely to Define Relative Rights................................115
Section 1807. Trustee to Effectuate Subordination........................................116
Section 1808. No Waiver of Subordination Provisions......................................116
Section 1809. Notice to Trustee..........................................................117
Section 1810. Reliance on Judicial Order or Certificate of Liquidating Agent.............117
Section 1811. Trustee Not Fiduciary for Holders of Senior Guarantor Indebtedness.........118
Section 1812. Rights of Trustee as Holder of Senior Guarantor Indebtedness;
Preservation of Trustee's Rights.....................................118
Section 1813. Article Applicable to Paying Agents........................................118
Exhibits
Exhibit A Form of Guarantee
Exhibit B Form of Trustee's Certificate of Authentication
Exhibit C Conversion Notice
Exhibit D Form of Certificate of Beneficial Ownership for Bearer Securities to be Provided
to the Euroclear Operator or to Cedel Bank, societe anonyme
Exhibit E Form of Certificate to be Given by the Euroclear Operator and Cedel Bank,
societe anonyme
Exhibit F Option to Elect Repayment upon a Repayment Event
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INDENTURE, dated as of __________ __, 1997 (the "Indenture"), among
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Thermo Instrument Systems Inc., a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter called the "Company"), having its
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principal executive office located at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000; Thermo Electron Corporation, a corporation duly organized and
existing under the laws of the State of Delaware (hereinafter called the
"Guarantor"), having its principal executive office located at 00 Xxxxx Xxxxxx,
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Xxxxxxx, Xxxxxxxxxxxxx 00000-0000; and Bankers Trust Company, a banking
corporation duly organized and existing under the laws of the United States of
America (hereinafter called the "Trustee"), having its principal Corporate Trust
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Office located at Four Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS:
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
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of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as provided in this
Indenture.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the Guarantees (as herein defined) by it with respect
to the Securities as set forth in this Indenture.
The Guarantor desires to make the Guarantees provided for herein, and
has determined that such Guarantees are necessary and convenient to the conduct
of the business of the Company, which is a subsidiary of the Guarantor.
All things necessary to make the Securities and any Coupons (as herein
defined), when executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company in accordance with its terms have been done.
All things necessary to make the Guarantees, when executed by the
Guarantor and endorsed on the Securities authenticated and delivered hereunder,
the valid obligations of the Guarantor, and to make this Indenture a valid
agreement of the Guarantor in accordance with its terms have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined), as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
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Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America and, except as
otherwise herein expressly provided, the terms "generally accepted
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accounting principles" or "GAAP" with respect to any computation
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required or permitted hereunder shall mean such accounting principles
as are generally accepted in the United States of America, consistently
applied, at the date of such computation;
(4) the words "Article" and "Section" refer to an Article and
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Section, respectively, of this Indenture;
(5) the words "herein," "hereof," "hereto" and "hereunder" and
------ ------ ------ ---------
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(6) the word "or" is always used inclusively (for example,
--
the phrase "A or B" means "A or B or both", not "either A or B but not
both").
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act," when used with respect to any Holders, has the meaning specified
---
in Section 104.
"Additional Amounts" has the meaning specified in Section 1004.
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2
"Affiliate" of any specified Person means any other Person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
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pursuant to Section 612 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
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the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Bankruptcy Law" has the meaning specified in Section 501.
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"Bearer Security" means any Security established pursuant to Section
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201 which is payable to bearer.
"Board of Directors," when used with reference to the Company or the
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Guarantor, means either the board of directors or any duly authorized committee
of such board of directors of the Company or the Guarantor, as the case may be.
"Board Resolution," when used with reference to the Company or the
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Guarantor, means a copy of one or more resolutions, certified by the Corporate
Secretary or an Assistant Corporate Secretary of the Company or the Guarantor,
as the case may be, to have been duly adopted by its respective Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day," with respect to any Place of Payment, Place of
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Conversion or other location, means, unless otherwise specified with respect to
any Securities pursuant to Section 301, any day other than a Saturday, Sunday or
other day on which banking institutions in such Place of Payment, Place of
Conversion or other location are authorized or obligated by law, regulation or
executive order to close.
"Cash Settlement Option" has the meaning specified in Section 1201.
----------------------
"CEDEL" has the meaning specified in Section 304(c).
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"Closing Price Per Share" means, with respect to common stock, for any
-----------------------
day, the reported last sales price regular way per share or, in case no such
reported sale takes place on
3
such day, the average of the reported closing bid and asked prices regular way,
as reported on the principal national or regional United States securities
exchange on which such common stock is traded or, if such common stock is not
listed or admitted to trading on a United States national or regional exchange,
as reported on the Nasdaq National Market, or if such common stock is not listed
or admitted to trading on the Nasdaq National Market, the average of the closing
bid and asked prices in the over the counter market as furnished by any New York
Stock Exchange member firm selected from time to time by the Company for that
purpose.
"Commission" means the Securities and Exchange Commission, as from time
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to time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depository" means the Person specified as such pursuant to
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Section 301.
"Common Stock" means the Common Stock, par value $.10 per share, of the
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Company authorized at the date of this instrument as originally executed.
Subject to the provisions of Section 1201 and 1211, shares issuable on
conversion of Securities shall include only shares of Common Stock or shares of
any class or classes of common stock resulting from any reclassification or
reclassifications thereof; provided, however, that if at any time there shall be
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more than one such resulting class, the shares so issuable on conversion of
Securities shall include shares of all such classes, and the shares of each such
class then so issuable shall be substantially in the proportion that the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.
"common stock" includes any stock of any class of capital stock which
------------
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
issuer thereof and which, by its terms, is not subject to redemption by the
issuer thereof.
"Company" means the Person named as the "Company" in the first
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paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
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"Company Request" and "Company Order" mean, respectively, a written
--------------- -------------
request or order, as the case may be, signed in the name of the Company by any
two Officers or by any Officer and either an Assistant Treasurer or an Assistant
Corporate Secretary, of the Company and delivered to the Trustee.
"Conversion Agent" means any Person authorized by the Company to
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convert Securities in accordance with Article Twelve.
"Conversion Date" means the date on which any Security, which is
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convertible by the terms and provisions of such Security established pursuant to
Section 301, and the duly signed
4
and completed conversion notice shall have been delivered to any Place of
Conversion in accordance with the provisions of Article Twelve.
"Conversion Price" has the meaning specified in Section 1201.
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"Corporate Secretary" or "Assistant Corporate Secretary" means the
------------------- -----------------------------
person elected by an entity's Board of Directors to hold the title of
"Secretary" or "Clerk" or "Assistant Secretary" or "Assistant Clerk," as the
case may be, as provided for by the applicable corporate law of an entity's
jurisdiction of incorporation.
"Corporate Trust Office" means the principal corporate trust office of
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the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at Four Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000."
"Corporation" and "corporation" includes corporations, associations,
----------- -----------
companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
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"Currency," with respect to any payment, deposit or other transfer in
--------
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars, and, with respect to any
other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, also means Dollars.
"CUSIP Number" means the alphanumeric designation assigned to a
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Security by Standard & Poor's Ratings Services, CUSIP Service Bureau.
"Custodian" has the meaning specified in Section 501.
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"Default" means any event or condition the occurrence of which would,
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with the lapse of time or the giving of notice,or both,constitute an Event
of Default.
"Defaulted Interest" has the meaning specified in Section 307.
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"Definitive Security" means any Security that is a Bearer Security
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(other than the temporary global Bearer Security) or a Registered Security.
"Dollars" or "$" means a dollar or other equivalent unit of legal
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tender for payment of public or private debts in the United States.
"EUROCLEAR" has the meaning specified in Section 304(c).
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"Event of Default" has the meaning specified in Section 501.
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5
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Exchange Date" means the date specified as such pursuant to Section
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301.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time.
"Foreign Entity" has the meaning specified in Section 801.
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"GAAP" means such accounting principles as are generally accepted in
----
the United States of America as of the date or time of any computation required
hereunder.
"Government Obligations" means securities which are (i) direct
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obligations of the United States or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
where the timely payment or payments thereunder are unconditionally guaranteed
as a full faith and credit obligation by the United States, and which, in the
case of (i) or (ii), are not callable or redeemable at the option of the issuer
or issuers thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of or other amount with respect
to any such Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
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custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation evidenced
by such depository receipt.
"Guarantee" means any guarantee of the Guarantor endorsed on a Security
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authenticated and delivered pursuant to this Indenture and shall include the
guarantee attached to this Indenture as Exhibit A.
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"Guarantor" means the Person named as "Guarantor" in the first
--------- ---------
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall include such successor corporation.
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"Guarantor Common Stock" means the common stock, par value $1.00 per
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share, of the Guarantor authorized at the date of this instrument as originally
executed or shares of any class or classes of common stock resulting from any
reclassification or reclassifications thereof; provided, however, that if at any
time there shall be more than one such resulting class, the shares so issuable
on conversion of Securities in accordance with Section 1201 shall include shares
of all such classes, and the shares of each such class then so issuable shall be
substantially in the proportion that the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"Guarantor Request" and "Guarantor Order" mean, respectively, a written
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request or order, as the case may be, signed in the name of the Guarantor by any
two Officers or by any
6
Officer and either an Assistant Treasurer or an Assistant Corporate Secretary,
of the Guarantor and delivered to the Trustee.
"Holder," in the case of any Registered Security, means the Person in
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whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indenture" means this instrument as it may from time to time be
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supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
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accountants that, with respect to the Company, the Guarantor and any other
obligor under the Securities or the Coupons, are independent public accountants
within the meaning of the Securities Act, and the rules and regulations
promulgated by the Commission thereunder, who may be the independent public
accountants regularly retained by the Company or the Guarantor or who may be
other independent public accountants. Such accountants or firm shall be entitled
to rely upon any Opinion of Counsel as to the interpretation of any legal
matters relating to this Indenture or certificates required to be provided
hereunder.
"Indexed Security" means a Security the terms of which provide that the
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principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest" or "interest," with respect to any Original Issue Discount
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Security, which by its terms bears interest only after Maturity, means interest
payable after Maturity and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
"Interest Payment Date," with respect to any Security, means the Stated
---------------------
Maturity of an installment of interest on such Security.
"Interest Record Date" means any Regular Record Date or Special Record
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Date.
"Internal Revenue Code" means the United States Internal Revenue Code
---------------------
of 1986, as amended.
"Investment Company Act" means the Investment Company Act of 1940 and
----------------------
any statute successor thereto, in each case as amended from time to time.
"Legal Holidays" has the meaning specified in Section 114.
--------------
7
"Market Price" has the following meaning unless otherwise defined in
------------
the Company's Board Resolutions or Officers' Certificate relating to a
particular series of Securities: (A) in case the Company chooses the Cash
Settlement Option with respect to the conversion of Securities, means the
Weighted Average Price of the Common Stock on the last Trading Day preceding the
applicable Conversion Date; and (B) in case the Company chooses the Stock
Settlement Option with respect to the conversion of Securities, means either (a)
if the Conversion Date is (i) a date prior to the date on which the Company
gives notice of redemption of all (but not less than all) of the Securities in
accordance with the provisions of Section 1104 (the "Redemption Notice Date") or
(ii) a date on or after the Redemption Notice Date and the Company has not
specified in its redemption notice that the Company will exercise the Stock
Settlement Option with respect to all or a portion of the shares of Common Stock
deliverable upon conversion of the Securities, the Closing Price Per Share of
the Common Stock or Guarantor Common Stock, as the case may be, on such
Conversion Date, or if the date is not a Trading Day, on the last Trading Day
preceding such date, as reported on the principal national or regional United
States securities exchange on which such shares are traded or, if the Common
Stock or Guarantor Common Stock, as the case may be, is not listed or admitted
to trading on a United States national or regional securities exchange, as
reported on the Nasdaq National Market, or (b) if the Conversion Date occurs on
or after the Redemption Notice Date and the Company has specified in its
redemption notice that the Company will exercise the Stock Settlement Option
with respect to all or a portion of the shares of Common Stock deliverable upon
conversion of the Securities, the Weighted Average Price of the Common Stock or
the Guarantor Common Stock, as the case may be, over all of the Trading Days
falling within the twenty-day period commencing on the Redemption Notice Date.
"Maturity," with respect to any Security, means the date on which the
--------
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repayment,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"Office" or "Agency", with respect to any Securities, means an office
------ ------
or agency of the Company maintained or designated as a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officer" means the Chairman of the Board, the President, any Vice
-------
President (whether or not designated by a number or word added before or after
the title vice president), the Treasurer or the Corporate Secretary of the
Company or the Guarantor, as the case requires.
"Officers' Certificate" of the Company or the Guarantor, as the case
---------------------
may be, means a certificate signed by two Officers or by any Officer and either
an Assistant Treasurer or an Assistant Corporate Secretary of the Company or the
Guarantor, as the case may be, that complies with the requirements of Section
314(e) of the Trust Indenture Act and is delivered to the Trustee.
8
"Opinion of Counsel" means a written opinion of counsel, who (unless
------------------
otherwise provided herein) may be an employee of or counsel for the Company or
the Guarantor, as the case may be, or other counsel that, if required by the
Trust Indenture Act, complies with the requirements of Section 314(e) of the
Trust Indenture Act.
"Original Issue Discount Security" means any Security issued pursuant
--------------------------------
to this Indenture which provides for an amount less than the principal face
amount thereof to be due and payable upon acceleration of the Maturity thereof
pursuant to Section 502.
"Outstanding," when used with respect to any Securities, means, as of
-----------
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(1) any such Security theretofore canceled by the Trustee or
the Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(2) any such Security for whose payment at the Maturity
thereof money in the necessary amount has been theretofore deposited
pursuant hereto (other than pursuant to Section 402) with the Trustee
or any Paying Agent (other than the Company or the Guarantor) in trust
or set aside and segregated in trust by the Company or the Guarantor,
as the case may be (if the Company or Guarantor shall act as its own
Paying Agent), for the Holders of such Securities and any Coupons
appertaining thereto, provided that, if such Securities are to be
-------- ----
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(3) any such Security with respect to which the Company has
effected defeasance or covenant defeasance pursuant to Section 402,
except to the extent provided in Section 402; and
(4) any such Security which has been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless there
shall have been presented to the Trustee proof satisfactory to it that
such Security is held by a bona fide purchaser in whose hands such
Security is a valid obligation of the Company,
provided, however, that in determining whether the Holders of the
-------- -------
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder or are present at a meeting of Holders of Securities for
quorum purposes, (i) the principal amount of an Original Issue Discount
Security that may be counted in making such determination and that
shall be deemed to be Outstanding for such purposes shall be equal to
the amount of the principal thereof that pursuant to the terms of such
Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration
thereof pursuant to Section 502 at the time of such determination, and
(ii) the principal amount of any Indexed Security that may be counted
in making such determination and that shall be deemed outstanding for
such purpose shall be equal to the principal face amount of such
9
Indexed Security at original issuance, unless otherwise provided in or
pursuant to this Indenture, and (iii) Securities beneficially owned by
the Company, the Guarantor or any other obligor upon the Securities or
any Affiliate of the Company shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in making any such determination or relying upon any such
request, demand, authorization, direction, notice, consent or waiver,
only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which
shall have been pledged in good faith shall be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee (a) the
pledgee's right so to act with respect to such Securities and (b) that
the pledgee is not the Company, the Guarantor or any other obligor upon
the Securities or any Coupons appertaining thereto or an Affiliate of
the Company, the Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Company or the
------------
Guarantor to pay the principal of, or any premium or interest on, or any
Additional Amounts with respect to, any Security or any Coupon or take any other
actions specifically provided in this Indenture on behalf of the Company or the
Guarantor, as the case may be.
"Person" means any individual, corporation, partnership, association,
------
joint venture, joint-stock company, limited liability company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Conversion" means any city in which any Conversion Agent is
-------------------
located.
"Place of Payment," with respect to any Security, means the place or
----------------
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to, such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
--------------------
Security evidencing all or a portion of the same indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Redemption Date," with respect to any Security or portion thereof to
---------------
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
10
"Redemption Price," with respect to any Security or portion thereof to
----------------
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
-------------------
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered
-------------------
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or such Security as the "Regular Record Date."
"Repayment Date" has the meaning specified in Section 1502.
--------------
"Repayment Event" has the meaning specified in Section 1502.
---------------
"Repayment Notice" has the meaning specified in Section 1503.
----------------
"Repayment Price" has the meaning specified in Section 1502.
---------------
"Responsible Officer," shall mean when used with respect to the
-------------------
Trustee, any officer within the Corporate Trust Office including any Vice
President, Managing Director, Assistant Vice President, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge and
familiarity with the particular subject.
"Security" or "Securities" means any note or notes, bond or bonds,
-------- ----------
debenture or debentures, or any other evidences of indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
-------- -------
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such Person, shall mean Securities
----------
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Security Register" and "Security Registrar" have the respective
----------------- ------------------
meanings specified in Section 305.
"Senior Indebtedness" of the Company means the principal of, premium,
-------------------
if any, and interest on and all other amounts due on or with respect to the
following, whether outstanding at the date of execution of this Indenture or
thereafter incurred or created:
(i) indebtedness of the Company for money borrowed by the
Company (excluding the Securities being issued or to be issued pursuant to this
Indenture, which will rank pari passu
11
with the obligations represented by all other Securities issued pursuant to this
Indenture in right of payment, but including, without limitation, purchase money
obligations and money borrowed from Guarantor or any affiliate of Guarantor),
whether or not evidenced by debentures, bonds, notes or other corporate debt
securities or similar instruments issued by the Company (including the Company's
obligations with respect to its 3 3/4% Senior Convertible Debentures due 2000,
and its 4 1/2% Senior Convertible Debentures due 2003); provided, however, that
-------- -------
Senior Indebtedness shall not include the Company's 6 5/8% Convertible
Subordinated Debentures due 2001, the obligations represented by which shall
rank pari passu with the obligations represented by all Securities issued under
this Indenture in right of payment;
(ii) obligations to reimburse any bank or other person in
respect of amounts paid under letters of credit;
(iii) leases of real property, equipment or other assets,
which leases are capitalized in the Company's financial statements in accordance
with GAAP;
(iv) commitment, standby and other fees due and payable to
financial institutions with respect to credit facilities available to the
Company;
(v) obligations of the Company under interest rate and
currency swaps, floors, caps or other similar arrangements intended to hedge
interest rates or currency exposure;
(vi) obligations secured by any mortgage, pledge, lien or
other encumbrance on property which is owned or held by the Company subject to
such mortgage, pledge, lien or other encumbrance, whether or not the obligations
secured thereby shall have been assumed by the Company;
(vii) obligations of the Company constituting guarantees of
indebtedness of or joint obligations with another or others which would be
included in the preceding clauses (i), (ii), (iii), (iv), (v) or (vi); and
(viii) modifications, renewals, extensions or refundings of
any of the indebtedness, leases, fees or obligations referred to in the
preceding clauses (i), (ii), (iii), (iv), (v), (vi) or (vii), or debentures,
notes or other evidences of indebtedness issued in exchange therefor;
provided that Senior Indebtedness shall not include any particular indebtedness,
-------- ----
lease, fee, obligation, modification, renewal, extension, refunding or exchanged
securities if, under the express provisions of the instrument creating or
evidencing the same, or pursuant to which the same is outstanding, such
indebtedness, lease, fee or obligation or such modification, renewal, extension,
refunding or exchanged security is stated to be not superior in right to payment
to the Securities.
"Senior Guarantor Indebtedness" means the principal of, premium, if
-----------------------------
any, and interest on and all other amounts due on or with respect to the
following, whether outstanding at the date hereof or hereafter created or
incurred:
12
(i) indebtedness of the Guarantor for money borrowed by
the Guarantor (excluding the Guarantees being issued, which will rank pari passu
with the obligations represented by all other Guarantees issued pursuant to this
Indenture in right of payment, but including, without limitation purchase money
obligations and money borrowed from any affiliate of the Guarantor) whether or
not evidenced by debentures, bonds, notes or other corporate debt securities or
similar instruments issued by the Guarantor (including the Guarantor's
obligations with respect to its 5% Senior Convertible Debentures due 2001);
provided, however, that Senior Guarantor Indebtedness shall not include the
Guarantor's subordinated guarantee of the obligations to redeem the common stock
of Thermo Fibergen Inc., ThermoLyte Corporation and ThermoLase Corporation, the
obligations represented by which shall rank pari passu with the obligations
represented by the Guarantees issued pursuant to this Indenture;
(ii) obligations to reimburse any bank or other person in
respect of amounts paid under letters of credit;
(iii) leases for real property, equipment or other assets,
which leases are capitalized in the Guarantor's consolidated financial
statements in accordance with generally accepted accounting principles;
(iv) commitment, standby and other fees due and payable to
financial institutions with respect to credit facilities available to the
Guarantor;
(v) obligations of the Guarantor under interest rate and
currency swaps, floors, caps or other similar arrangements intended to fix or
hedge interest rate obligations or currency exposure;
(vi) obligations secured by any mortgage, pledge, lien or
other encumbrance on property which is owned or held by the Guarantor subject to
such mortgage, pledge, lien or other encumbrance, whether or not the obligations
secured thereby shall have been assumed by the Guarantor;
(vii) obligations of the Guarantor constituting guarantees
of indebtedness of or joint obligations with another or others which would be
included in the preceding clauses (i), (ii), (iii), (iv), (v) or (vi) (including
the Guarantor's guarantee of the principal, premium, if any, and interest on the
4-1/2% Senior Convertible Debentures due 2003 and 3-3/4% Senior Convertible
Debentures due 2000 of Thermo Instrument Systems Inc.); or *
(viii) modifications, renewals, extensions or refundings of
any of the indebtedness, leases, fees or obligations referred to in the
preceding clauses (i), (ii), (iii), (iv), (v), (vi) and (vii), or debentures,
notes or other evidences of indebtedness issued in exchange therefor;
provided that Senior Guarantor Indebtedness shall not include any particular
-------- ----
indebtedness, lease, fee, obligation, modification, renewal, extension,
refunding or exchanged security if, under the express provisions of the
instrument creating or evidencing the same, or pursuant to which the
13
same is outstanding, such indebtedness, lease, fee or obligation or such
modification, renewal, extension, refunding or exchanged security is stated to
be not superior in right of payment to the Guarantees.
"Senior Lender" means any holder of Senior Indebtedness or Senior
-------------
Guarantor Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest on any
-------------------
Registered Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," with respect to any Security or any installment of
---------------
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security or Coupon as the fixed date on which the principal of such Security or
such installment of principal or interest is, or such Additional Amounts are,
due and payable.
"Stock Settlement Option" has the meaning specified in Section 1201.
-----------------------
"Subsidiary" means a corporation or other entity, a majority of the
----------
outstanding voting securities or other ownership interests having ordinary
voting power to elect a majority of the corporate directors or other Persons
performing similar functions of which is owned, directly or indirectly, by the
Company, the Guarantor or by one or more other Subsidiaries, or by the Company,
the Guarantor and one or more other Subsidiaries.
"Tax" has the meaning specified in Section 1004.
---
"Tax Affected Security" means any Security held by a non-United States
---------------------
person to whom Additional Amounts have or will become payable.
"Tax Law Change" means any change in, or amendment to, the laws
--------------
(including any regulations or rulings promulgated thereunder) of the United
States or any political subdivision or taxing authority thereof or therein
affecting taxation, or any change in, or amendment to, the application or
official interpretation of such laws, regulations or rulings.
"Trading Days" means (i) if the common stock is quoted on the Nasdaq
------------
National Market or any similar system of automated dissemination of quotations
of securities prices, days on which trades may be effected through such system,
(ii) if the common stock is listed or admitted for trading on any national
securities exchange, days on which such national securities exchange is open for
business or (iii) if the common stock is not quoted on the Nasdaq National
Market or similar system or listed or admitted to trading on any national
securities exchange, days on which the common stock is traded regular way in the
over-the-counter market and for which a closing bid and a closing asked price
for the common stock are available.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented
14
from time to time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
------- -------
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
-------
each Person who is then a Trustee hereunder; provided, however, that if at any
-------- -------
time there is more than one such Person, "Trustee" as used with respect to the
-------
Securities of any series shall mean the Trustee with respect to Securities of
such series.
"United States," except as otherwise provided in or pursuant to this
-------------
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States person" is a person that is, for United States Federal
--------------------
income tax purposes, (a) a citizen or resident of the United States, (b) a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, (c) an estate,
the income of which is subject to United States Federal income taxation
regardless of source, (d) any trust if a court within the United States is able
to exercise primary supervision of the administration thereof and one or more
United States fiduciaries have the authority to control all substantial
decisions thereof, or (e) any other person included within the definition of
United States person under the Internal Revenue Code and the regulations
thereunder.
"U.S. Depository" or "Depository" means, with respect to any Security
--------------- ----------
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Exchange Act, and, if so
provided with respect to any Security, any successor to such Person. If at any
time there is more than one such Person, "U.S. Depository" or "Depository" shall
--------------- ----------
mean, with respect to any Securities, the qualifying entity which has been
appointed with respect to such Securities.
"Vice President," when used with respect to the Company, the Guarantor
--------------
or the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "Vice President."
--------------
"Weighted Average Price" of a share of Common Stock or Guarantor Common
----------------------
Stock during any period, unless otherwise defined in the Company's Board
Resolutions or Officers' Certificate relating to a particular series of
Securities means the weighted average per share sale price for all reported
sales of shares of Common Stock or Guarantor Common Stock, as the case may be,
on the Trading Days included within such period (or, if the information
necessary to calculate such weighted average per share sale price is not
available, the average of the high and low sale prices or, if only one sale is
reported, such sale price) as reported in the composite transactions on the
principal national or regional United States securities exchange on which the
Common Stock or Guarantor Common Stock, as the case may be, is listed or
admitted to trading, or if the Common Stock or Guarantor Common Stock, as the
case may be, is not listed or admitted to trading on a United States national or
regional securities exchange, as reported on the
15
Nasdaq National Market, or if the Common Stock or Guarantor Common Stock, as the
case may be, is not listed or admitted to trading on the Nasdaq National Market,
as reported in the over the counter market and as furnished by any New York
Stock Exchange member firm selected from time to time by the Company for that
purpose.
Section 102. Compliance Certificates and Opinions.
------------------------------------
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company or the Guarantor,
as the case may be, shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant has
been satisfied or complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been satisfied or complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by or
covered by an opinion of any specified Person, it is not necessary that all such
matters be certified by or covered by the opinion of only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon an Opinion
of Counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the opinion with respect to the matters upon
16
which his certificate or opinion is based are erroneous. Any such Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or the Guarantor stating that the information with respect to such
factual matters is in the possession of the Company or the Guarantor unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
---------------
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this
Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in
writing. If, but only if, Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this
Indenture to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance
with the provisions of Article Sixteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where
it is hereby expressly required, to the Company or the Guarantor, as
the case may be. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section
315 of the Trust Indenture Act) conclusive in favor of the Trustee, the
Company and the Guarantor and any agent of the Trustee, the Company, or
the Guarantor, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the
manner provided in Section 1606.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder,
including a Depository that is a Holder of a global Security, may make,
give or take, by a proxy, or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or
other Act provided in or pursuant to this Indenture or the Securities
to be made, given or taken by Holders, and a Depository that is a
Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in any such global Security through such
Depository's standing instructions and customary practices.
17
(2) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner which
the Trustee deems sufficient and in accordance with such reasonable
rules as the Trustee may determine; and the Trustee may in any instance
require further proof with respect to any of the matters referred to in
this Section 104.
(3) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the
commencement and the date of the termination of holding the same, shall
be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of the commencement
and the date of the termination of holding the same, may be proved by
the production of such Bearer Securities or by a certificate executed,
as depository, by any trust company, bank or other depository
reasonably acceptable to the Company and the Guarantor, wherever
situated, if such certificate shall be deemed by the Company, the
Guarantor and the Trustee to be satisfactory, showing that at the date
therein mentioned such Person had on deposit with such depository, or
exhibited to it, the Bearer Securities therein described; or such facts
may be proved by the certificate or affidavit of the Person holding
such Bearer Securities, if such certificate or affidavit is deemed by
the Company, the Guarantor and the Trustee to be satisfactory. The
Trustee, the Company and the Guarantor may assume that such ownership
of any Bearer Security continues until (i) another certificate or
affidavit bearing a later date issued in respect of the same Bearer
Security is produced, or (ii) such Bearer Security is produced to the
Trustee by some other Person, or (iii) such Bearer Security is
surrendered in exchange for a Registered Security, or (iv) such Bearer
Security is no longer Outstanding. The ownership, principal amount and
serial numbers of Bearer Securities held by the Person so executing
such instrument or writing and the date of the commencement and the
date of the termination of holding the same may also be proved in any
other manner which the Company, the Guarantor and the Trustee deem
sufficient.
18
(5) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may at its option
(but is not obligated to), by a Company Board Resolution, fix in
advance a record date for the determination of Holders of Registered
Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date
is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record
date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for
the purpose of determining whether Holders of the requisite proportion
of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver
or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization,
agreement or consent by the Holders of Registered Securities shall be
deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record
date.
(6) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind
every future Holder of the same Security and any Coupon appertaining
thereto and the Holder of every Security or Coupon issued upon the
registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, the Company or the
Guarantor in reliance thereon, whether or not notation of such Act is
made upon such Security.
(7) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any
particular Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with regard
to all or any different part of such principal amount.
Section 105. Notices, Etc. to Trustee, Company and Guarantor.
-----------------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, the Company or the Guarantor
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, or
(2) the Company or the Guarantor by the Trustee or any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company or the Guarantor addressed to the
attention of its Treasurer at the address of its principal office
specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company
or the Guarantor.
19
Section 106. Notice to Holders of Securities; Waiver.
---------------------------------------
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper in
such city as the Company shall advise the Trustee that such stock
exchange so requires, on a Business Day at least once, such publication
to be not earlier than the earliest date and not later than the latest
date prescribed for the giving of such notice; provided that any
-------- ----
additional notice to Holders of Securities of any event may be provided
at any time upon the request of the Company and shall provided in the
manner set forth above.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
20
Section 107. Language of Notices.
-------------------
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company or the
Guarantor shall bind its successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
-------------------
In case any provision in this Indenture, any Security or any Coupon or
Guarantee 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 112. Benefits of Indenture.
---------------------
Nothing in this Indenture, any Security, any Coupon, or in the
Guarantees shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent or Conversion Agent and their successors hereunder
and the Holders of Securities, Coupons or Guarantees, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
-------------
This Indenture, the Securities, any Coupons and the Guarantees shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts applicable to agreements made or instruments entered into and, in
each case, performed in said state, except that the rights, protections,
obligations, indemnities and immunities of the Trustee under this Indenture
shall be governed by the laws of the State of New York, without regard to the
principles of conflicts of laws of either state.
21
Section 114. Legal Holidays.
--------------
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Conversion Date,
Redemption Date, Repayment Date, Stated Maturity or Maturity of any Security
shall not be a Business Day at any Place of Payment or any Place of Conversion,
as the case may be, then (notwithstanding any other provision of this Indenture,
any Security, Coupon or Guarantee other than a provision in any Security, Coupon
or Guarantee that specifically states that such provision shall apply in lieu of
this Section) payment of interest or principal (and premium or Additional
Amounts, if any) or delivery for conversion of such Security need not be made at
such Place of Payment or Place of Conversion on such date, but such payment may
be made on the next succeeding Business Day at such Place of Payment or Place of
Conversion with the same force and effect as if made on the Interest Payment
Date, Conversion Date, Redemption Date, Repayment Date or at the Stated Maturity
or Maturity or by such last day for conversion, and no interest shall accrue on
the amount payable on such date or at such time for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, Conversion Date,
Stated Maturity or Maturity or last day for conversion, as the case may be, to
the next succeeding Business Day.
Section 115. Taxes.
-----
The Company will pay all stamp taxes and other similar duties, if any,
that may be imposed by the United States or the United Kingdom, or any state or
political subdivision thereof or taxing authority therein, with respect to the
execution or delivery of this Indenture, or the issuance of the Securities,
Coupons or the Guarantees, or the exchange from time to time of the temporary or
permanent Securities in global form for Registered Securities or Bearer
Securities, or with respect to the issue or delivery of shares of Common Stock
on conversion of Securities; provided, however, that the Company shall not be
-------- -------
required to pay any tax or duty which may be payable in respect of the
registration of transfer or exchange of Securities and any transfer involved in
the issue or delivery of shares of Common Stock in a name other than that of the
Holder of the Security or Securities to be converted in accordance with the
provisions of Article Twelve, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Company the amount of
any such tax or duty or has established to the satisfaction of the Company that
such tax or duty has been paid; and provided further, that the Company shall not
-------- -------
be required to pay any tax or duty that may be payable in respect of any accrued
interest paid in connection with the conversion of the Securities.
22
ARTICLE TWO
SECURITIES AND GUARANTEE FORMS
Section 201. Forms Generally.
---------------
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Company Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by or
pursuant to this Indenture or any indenture supplemental hereto, and the
Guarantees, if any, shall be in substantially the form attached to this
Indenture as Exhibit A or in such other form as shall be established pursuant to
---------
a Guarantor 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 as may, consistently herewith, be determined by the
officers executing such Security, Coupon or Guarantee as evidenced by their
execution of such Security, Coupon or Guarantee. If the form of Registered
Security, Bearer Security, Coupon, temporary or permanent global Security or
Guarantee is established by action taken pursuant to a Board Resolution of the
Company and the Guarantor, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and the
Guarantor, respectively, and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Registered Security, Bearer Security, Coupon, temporary or
permanent global Security or Guarantee.
Definitive Securities, definitive Coupons and the Guarantees shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers of the Company executing
such Securities, Coupons or Guarantees, as evidenced by their execution of such
Securities, Coupons or Guarantees.
Unless otherwise specified pursuant to Section 301 and except for
temporary global Bearer Securities (as contemplated by Section 304 hereof),
Bearer Securities shall have Coupons attached.
Section 202. Guarantee by Guarantor; Form of Guarantee.
-----------------------------------------
The Guarantor by its execution of this Indenture hereby agrees with
each Holder of a Security authenticated and delivered by the Trustee, and with
the Trustee on behalf of each such Holder, to be unconditionally bound by the
terms and provisions of the Guarantee substantially in the form attached to this
Indenture as Exhibit A and authorizes the Chairman of the Board, President or a
---------
Vice President or the Treasurer of the Guarantor to execute, manually or by
facsimile signature in the name and on behalf of the Guarantor, and to confirm
such Guarantee to the Holder of each such Security by its execution and delivery
of each such Security, with such
23
Guarantee endorsed thereon, authenticated and delivered by the Trustee. When
delivered pursuant to the provisions of Section 303 hereof, the Guarantee so set
forth on the Security shall bind the Guarantor notwithstanding the fact that
such Guarantee does not bear the signature of the Guarantor.
Each Guarantee shall be dated the date of the Security upon which it is
endorsed. Reference is made to Articles Fourteen and Eighteen for further
provisions with respect to the Guarantees.
Section 203. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 612, the Trustee's certificate of authentication
shall be in substantially the form attached to this Indenture as Exhibit B.
---------
Section 204. Securities in Global Form.
-------------------------
Unless otherwise provided in a Company Order, the Securities initially
shall be issued in global form. Securities issued in temporary or permanent
global form may provide that it or any number of such Securities shall represent
the aggregate principal amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any global Security to reflect the amount,
or any increase or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby shall be made in such manner and
by such Person or Persons as shall be specified therein or in the Company Order
or Guarantor Order to be delivered pursuant to Section 303 or 304 with respect
thereto. Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order or Guarantor Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to a Security in global
form shall be in writing but need not be accompanied by or contained in a
Company Officers' Certificate and need not be accompanied by an Opinion of
Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and (except for temporary global Bearer Securities (as
contemplated by Section 304 hereof)) interest on, and any Additional Amounts in
respect of, any temporary or permanent global Security shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 301.
24
Section 205. Form of Conversion Notice.
-------------------------
At the time of conversion of a Security in accordance with Article
Twelve, the Holder of such Security shall deliver to the Trustee, the Conversion
Agent, the Company and the Guarantor a notice of conversion in substantially the
form attached to this Indenture as Exhibit C.
---------
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated
and delivered and outstanding under this Indenture is unlimited. The Securities
may be issued in one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to one or more Company
Board Resolutions and Guarantor Board Resolutions, or pursuant to authority
granted by one or more Company Board Resolutions and Guarantor Board Resolutions
and, subject to Section 303, set forth or determined in the manner provided in a
Company and Guarantor Officers' Certificate, or established in one or more
indentures supplemental hereto prior to the issuance of any Securities of a
series any or all of the following; provided that if any of the following are
-------- ----
already provided for in this Indenture, then such provisions shall be applicable
to each series established hereunder unless otherwise provided pursuant to the
Company and Guarantor Board Resolutions establishing such series and set forth
in the applicable Company and Guarantor Officers' Certificate or unless
otherwise provided in any Indenture or Indentures supplemental hereto pertaining
to such series of Securities:
(1) the title or designation of such Securities and the series
in which such Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or designation or the Securities of such
series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration or
transfer of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 905 or 1107, upon
repayment in part of any Security of such series pursuant to Article
Fifteen, or upon surrender in part of any Security for conversion or
exchange into other securities pursuant to its terms, or pursuant to
the terms of such Securities);
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any
25
restrictions applicable to the offer, sale or delivery of the Bearer
Securities and the terms, if any, upon which Bearer Securities may be
exchanged for Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global form,
when any of such Securities are to be issuable in global form and (i)
whether such Securities are to be issued in temporary or permanent
global form or both, (ii) whether beneficial owners of interests in any
such global Security may exchange such interests for Securities of the
same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such exchanges may
occur, if other than in the manner specified in Xxxxxxx 000, (xxx) the
name of the Depository or the U.S. Depository, as the case may be, with
respect to any global Security, (iv) the name of the Common Depository,
if applicable, and (v) the Exchange Date, if applicable;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest
Payment Date therefor prior to the Exchange Date, shall be paid to any
clearing organization with respect to the portion of such temporary
Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date, if other than as provided in Section 304;
(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal of
such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates, if
any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, the notice,
if any, to Holders regarding the determination of interest on a
floating rate Security and the manner of giving such notice, and the
basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan,
The City of New York, (or, in the case of Bearer Securities, except as
otherwise provided herein, London, England), the place or places where
the principal of, any premium and interest on or any Additional Amounts
with respect to such Securities shall be payable any of such Securities
may be surrendered for registration of transfer or exchange, any of
such
26
Registered Securities may be surrendered for conversion, any of such
Bearer Securities may be surrendered for conversion in the
circumstances described herein and notices or demands to or upon the
Company or the Guarantor in respect of such Securities and this
Indenture may be served, the extent to which, or the manner in which,
any interest payment or Additional Amounts on a global Security on an
Interest Payment Date will be paid and the manner in which any
principal of or premium, if any, on any global Security will be paid;
(10) whether any of such Securities are to be redeemable at the
option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company and, if other than by
a Company Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
(11) if the Company is obligated to redeem or purchase any of
such Securities pursuant to any sinking fund or analogous provision or
at the option of any Holder thereof and, if so, the date or dates on
which, the period or periods within which, the price or prices at which
and the other terms and conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of such Securities
so redeemed or purchased;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in
which any of such Securities that are Bearer Securities shall be
issuable if other than the denominations of $1,000 and $10,000;
(13) if other than the principal amount thereof, the portion of
the principal amount of any of such Securities that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion is to be determined;
(14) if the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities
may be determined with reference to an index, indices, formula or other
method or methods (which index, indices, formula or method or methods
may be based, without limitation, on one or more currencies,
commodities, equity indices or other indices), and, if so, the terms
and conditions upon which and the manner in which such amounts shall be
determined and paid or payable;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of
such Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(16) if either or both of Section 402(2) relating to defeasance
or Section 402(3) relating to covenant defeasance shall be applicable
to the Securities of such series, or any
27
covenants in addition to those specified in Section 402(3) relating to
the Securities of such series which shall be subject to covenant
defeasance, and any deletions from, or modifications or additions to,
the provisions of Article Four in respect of the Securities of such
series;
(17) the terms, if any, on which such Securities may be converted
into or exchanged for other securities of the Company, and whether on
such conversion the Company may substitute cash or securities of the
Company or the Guarantor in lieu of issuing Common Stock upon such
conversion and the terms of such substitution;
(18) if any of such Securities are to be issuable in global form
and are to be issuable in definitive form (whether upon original issue
or upon exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(19) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, and the identity of each Paying Agent, Conversion Agent or
Authenticating Agent with respect to such Securities;
(20) the subordination provisions with respect to the Securities
and Guarantees if other than as set forth in Article Seventeen or
Eighteen, respectively; and
(21) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such
Securities (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section 901).
All Securities (and Guarantees endorsed thereon) of any one series and
all Coupons, if any, appertaining to Bearer Securities of such series shall be
substantially identical except as to denomination and Maturity and except as may
otherwise be provided by the Company in or pursuant to the Company Board
Resolution and set forth in the Company Officers' Certificate or in any
indenture or indentures supplemental hereto pertaining to such series of
Securities. The terms of the Securities of any series (as set forth in the
applicable Board Resolution or Company Order) may provide, without limitation,
that the Securities shall be authenticated and delivered by the Trustee on
original issue from time to time upon telephonic or written order of persons
designated in the Company Officers' Certificate or supplemental indenture
(telephonic instructions to be promptly confirmed in writing by such person) and
that such persons are authorized to determine, consistent with such Company
Officers' Certificate or any applicable supplemental indenture, such terms and
conditions of the Securities of such series as are specified in such Company
Officers' Certificate or supplemental indenture. All Securities of any one
series need not be issued at the same time and, unless otherwise so provided by
the Company, a series may be reopened for issuances of additional Securities of
such series.
If any of the terms of the Securities of any series shall be
established and approved by action taken by or pursuant Board Resolutions of the
Company and the Guarantor, respectively, copies of appropriate records of such
actions shall be certified by the Secretary or an Assistant
28
Secretary of the Company and the Guarantor, respectively, and delivered to the
Trustee at or prior to the delivery of the Officers' Certificates setting forth
the terms of such series.
Section 302. Currency; Denominations.
-----------------------
The principal of, any premium and interest on and any Additional
Amounts with respect to the Securities shall be payable in Dollars. Unless
otherwise provided in or pursuant to this Indenture, Registered Securities shall
be issuable in registered form without Coupons in denominations of $1,000 and
any integral multiple thereof, and Bearer Securities shall be issuable in
denominations of $1,000 and $10,000 (or any other authorized denominations) with
Coupons attached.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
Securities shall be executed on behalf of the Company by any Officer
under its corporate seal reproduced thereon and attested by its Corporate
Secretary (provided that the Corporate Secretary shall not attest his or her own
signature as an Officer) or one of its Assistant Corporate Secretaries. Coupons
shall be executed on behalf of the Company by any Officer. The signature of any
of these officers on the Securities or any Coupons appertaining thereto may be
manual or facsimile.
Securities, Coupons appertaining thereto and Guarantees bearing the
manual or facsimile signatures of individuals who were at any time the proper
Officers of the Company or the Guarantor shall bind the Company and the
Guarantor, respectively, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities, Coupons or Guarantees or did not hold such offices at the date
of such Securities, Coupons or Guarantees.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, having endorsed thereon
Guarantees of the Guarantor, to the Trustee for authentication and, provided
that the Company and Guarantor Board Resolutions, Company and Guarantor
Officers' Certificate (if the terms of such Securities are provided therein
pursuant to authority granted by Company and Guarantor Board Resolution) or
supplemental indenture or indentures with respect to such Securities referred to
in Section 301 and a Company Order for the authentication and delivery of such
Securities and a Guarantor Order approving the delivery of the Guarantees
endorsed thereon have been delivered to the Trustee, the Trustee in accordance
with the Company and Guarantor Orders and subject to the provisions hereof and
of such Securities shall authenticate and deliver such Securities having such
Guarantees; provided, however, that, in connection with its original issuance,
-------- -------
no Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and provided, further, that a Bearer Security (other than a
-------- -------
temporary global Bearer Security) may be delivered outside the United States in
connection with its original issuance only if the certifications described in
Section 304 are provided in accordance with the provisions of Section 304. If
any Security shall be represented by a permanent global Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or
29
upon exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with the original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306 ,
the Trustee for the Securities of a series shall not authenticate and deliver
any Bearer Security (or related Guarantee) unless all appurtenant Coupons for
interest then matured other than matured coupons in default have been detached
and canceled. If all the Securities of any one series are not to be issued at
one time and if a Board Resolution relating to such Securities (or Officers'
Certificate provided pursuant to authority granted by Board Resolution) shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities, including, without limitation, procedures
with respect to interest rate, Stated Maturity, date of issuance and date from
which interest, if any, shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
Coupons appertaining thereto, the Trustee shall be entitled to receive, and
(subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be
fully protected in relying upon:
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and Coupons,
if any, and Guarantees have been established or approved by or pursuant
to Board Resolutions of the Company and the Guarantor in conformity
with Sections 201 and 301 of this Indenture;
(b) all conditions precedent to the authentication and delivery
of such Securities and Coupons, if any, appertaining thereto, and of
such Guarantees have been complied with and that such Securities,
Coupons and Guarantees, when completed by appropriate insertions,
executed under the Company's corporate seal and attested by duly
authorized officers of the Company (in the case of the Securities or
Coupons) or when completed by appropriate insertions, executed under
the Guarantor's corporate seal and attested by duly authorized officers
of the Guarantor (in the case of the Guarantees), delivered by duly
authorized officers of the Company or the Guarantor, as the case may
be, to the Trustee for authentication pursuant to this Indenture, and
authenticated and delivered by the Trustee and issued by the Company
and the Guarantor in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute legally valid and binding
obligations of the Company and of the Guarantor, respectively,
enforceable in accordance with their terms, subject, in the case of the
Securities to bankruptcy, insolvency, reorganization, moratorium,
arrangement, fraudulent conveyance, fraudulent transfer or other
similar laws of general applicability to the Company and relating to or
affecting creditors' rights and to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law), and subject, in the case of the Guarantees, to bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent
conveyance, fraudulent transfer or other similar laws of general
applicability to the Guarantor and relating to or affecting creditors'
rights and to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law); and
30
(c) this Indenture has been qualified under the Trust Indenture
Act; and
(2) a Company Officers' Certificate and Guarantor Officer's
Certificate, each stating that, to the best knowledge of the Persons
executing such certificate, no Default or Event of Default with respect
to any of the Securities shall have occurred and be continuing.
If all of the Securities of any series are not to be issued at one
time, unless requested by the Trustee, it shall not be necessary to deliver an
Opinion of Counsel at the time of issuance of each Security, but such opinion,
with such modifications as counsel shall deem appropriate, shall be delivered at
or before the time of issuance of the first Security of such series. After any
such first delivery, any separate request by the Company that the Trustee
authenticate additional Securities of such series for original issue will be
deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any 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 or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any temporary global Security shall be dated as of the
date specified in or pursuant to this Indenture.
No Security or Guarantee endorsed thereon or Coupon appertaining to
such Security shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for in Section
203 or 612 executed by or on behalf of the Trustee or by the Authenticating
Agent by the manual signature of one of its authorized officers. Such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
Section 304. Temporary Securities.
--------------------
(a) Pending the preparation of Definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order and a Guarantor Order
for authentication and delivery, the Trustee shall authenticate and deliver, in
the manner provided in Section 303, temporary Securities in lieu thereof which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the Definitive
Securities in lieu of which they are issued, in registered form or, if
authorized in or pursuant to this Indenture, in bearer form with one or more
Coupons or without Coupons, and having endorsed thereon Guarantees of the
Guarantor substantially of the tenor of the definitive Guarantees, with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities or Guarantees may determine, as conclusively
evidenced by
31
their execution of such Securities or Guarantees. Such temporary Securities may
be in global form.
(b) Except in the case of temporary global Bearer Securities, which
shall be exchanged in accordance with the provisions of clause (c) of this
Section 304, if temporary Securities are issued, the Company shall cause
Definitive Securities to be prepared without unreasonable delay. After the
preparation of Definitive Securities of the same series and containing terms and
provisions that are identical to those of any temporary Securities, such
temporary Securities shall be exchangeable for such Definitive Securities with
Guarantees of the Guarantor endorsed thereon upon surrender of such temporary
Securities at an Office or Agency for such Securities, without charge to any
Holder thereof. Upon surrender for cancellation of any one or more temporary
Securities (accompanied by any unmatured Coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Securities of authorized
denominations of the same series and containing identical terms and provisions
which have endorsed thereon the Guarantees of the Guarantor; provided, however,
-------- -------
that no definitive Bearer Security, except as provided in or pursuant to this
Indenture, shall be delivered in exchange for a temporary Registered Security;
and provided, further, that a definitive Bearer Security shall be delivered in
-------- -------
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Bearer Security,
until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as Definitive Securities
of such series.
(c) All or a portion of the Securities constituting Bearer Securities
may be initially issued as temporary global Bearer Securities without Coupons or
conversion rights, having endorsed thereon the Guarantees. Such temporary global
Bearer Securities shall be deposited on the applicable closing date on behalf of
the subscribers for the Securities represented thereby with the Common
Depository, for credit to their respective accounts (or to such other accounts
as they may direct) at XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, Brussels
Office, as operator of the EUROCLEAR CLEARANCE SYSTEM ("EUROCLEAR"), or CEDEL
BANK, SOCIETE ANONYME ("CEDEL").
On or before the Exchange Date, the Company shall deliver to the Paying
Agent in London at its principal London office or to its designated agent
outside the United States, definitive Bearer Securities with Guarantees of the
Guarantor endorsed thereon. On or after the applicable Exchange Date, the
temporary global Bearer Securities may be surrendered by the Common Depository
to the Trustee or its agent, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Bearer
Securities without charge to Holders, and the Trustee or the Paying Agent in
London or other Paying Agent outside the United States shall authenticate and
deliver (at an office or agency outside the United States), in exchange for the
temporary global Bearer Securities or the portions thereof to be exchanged, an
equal aggregate principal amount of definitive Bearer Securities, as shall be
specified by the Holders thereof; provided, however, that upon such presentation
-------- -------
by the Common Depository, the temporary global Bearer Securities are accompanied
by a certificate dated the Exchange Date or a subsequent date and signed by
EUROCLEAR as to the portion of the temporary global Bearer
32
Securities held for its account then to be exchanged and a certificate dated the
Exchange Date or a subsequent date and signed by CEDEL as to the portion of the
temporary global Bearer Securities held for its account then to be exchanged,
each substantially in the form of Exhibit E hereto to the effect that it has
---------
received a certificate or certificates substantially in the form of Exhibit D
---------
hereto dated no earlier than 15 days prior to the Exchange Date and signed by
the person appearing in its records as the owner of the temporary global Bearer
Securities or portions thereof being exchanged. The Company hereby appoints the
principal office of the Paying Agent in London, England, or its designated
agent, as its agent outside the United States where definitive Bearer Securities
may be delivered in exchange for the temporary global Bearer Securities or
portions thereof. Each beneficial owner of any portion of the temporary global
Bearer Securities shall be entitled to take delivery of definitive Bearer
Securities only at such office.
Temporary global Bearer Securities will be exchangeable for Registered
Securities in denominations of $1,000 or an integral multiple thereof at any
time without the certification requirements set forth in the preceding
paragraph; provided that such exchange is permitted by the rules and procedures
-------- ----
then in effect of CEDEL and EUROCLEAR, and provided, further, that if and so
-------- -------
long as Registered Securities of a series are represented solely by a permanent
global Registered Security, the temporary global Bearer Security will only be
exchangeable for an interest in the permanent global Registered Security as set
forth in Section 305 herein.
Notwithstanding any other provision hereof or of the Securities, no
Bearer Security initially represented by the temporary global Bearer Securities
will be mailed to or otherwise delivered in connection with its original
issuance to any location within the United States. The Trustee agrees that it
will cause the Paying Agent in London (if required) to retain each certificate
provided by EUROCLEAR or CEDEL for a period of four calendar years following the
year in which the certificate is received and not to destroy or otherwise
dispose of any such certificate without first offering to deliver it to the
Company.
Upon any such exchange of a portion of the temporary global Bearer
Security for either definitive Bearer Securities or Registered Securities (if
permitted by the rules and procedures then in effect of CEDEL and EUROCLEAR),
the temporary global Bearer Security shall be deemed to reflect the reduction of
the principal amount evidenced thereby. Until so exchanged in full, the
temporary global Bearer Security shall in all respects be entitled to the same
benefits under, and subject to the same terms and conditions of, this Indenture
as definitive Bearer Securities authenticated and delivered hereunder, except
that none of EUROCLEAR, CEDEL or the beneficial owners of the temporary global
Bearer Security shall be entitled to receive payment of interest or other
payments thereon or to convert the temporary global Bearer Security, if
applicable, or any portion thereof, as set forth in Article Twelve, except as
otherwise permitted pursuant to this Indenture or the Securities.
Section 305. Registration, Transfer and Exchange.
-----------------------------------
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security
--------
33
Register") at an Office or Agency for such series in which, subject to such
--------
reasonable regulations as it may prescribe, the Company shall provide for the
registration of the Registered Securities of such series and of transfers of the
Registered Securities of such series. Such Office or Agency shall be the
"Security Registrar" for that series of Securities. Unless otherwise specified
------------------
in or pursuant to this Indenture or the Securities, the Trustee shall be the
initial Security Registrar for each series of Securities. The Company shall have
the right to remove and replace from time to time the Security Registrar for any
series of Securities; provided that no such removal or replacement shall be
-------- ----
effective until a successor Security Registrar with respect to such series of
Securities shall have been appointed by the Company and shall have accepted such
appointment. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such 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 Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions, having endorsed
thereon the Guarantee duly executed by the Guarantor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any applicable Office or Agency for such series. Whenever any Registered
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive, having endorsed thereon
Guarantees of the Guarantor which the Holder is entitled to receive. Registered
Securities of any series may not be exchanged for Bearer Securities.
At the option of the Holder, definitive Bearer Securities of such
series may be exchanged at any time (except as otherwise provided in this
Indenture) for Registered Securities or Bearer Securities of such series
containing identical terms, denominated as authorized in or pursuant to this
Indenture and in the same aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any applicable Office or Agency for such
series located outside the United States, with any and all unmatured Coupons and
any and all matured Coupons in default thereto appertaining; provided that if
-------- ----
and so long as Registered Securities of a series are represented solely by a
permanent global Registered Security, such definitive Bearer Securities will
only be exchangeable for an interest in the permanent global Registered Security
as set forth in this Section 305. If the Holder of a Bearer Security is unable
to produce any such unmatured Coupon or Coupons or matured Coupon or Coupons in
default, such exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company, the Guarantor and the Trustee in
an amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company, the
Guarantor and the Trustee if there is furnished to them such security or
indemnity as they
34
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Bearer Security shall surrender to any Paying Agent any such
missing Coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; provided,
--------
however, that, except as otherwise provided in Section 1002, interest
-------
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an applicable Office or Agency for such series located outside
the United States. Notwithstanding the foregoing, in case a Bearer Security of
any series is surrendered at any such Office or Agency for such series in
exchange for a Registered Security of such series and like tenor after the close
of business at such Office or Agency on (i) any Regular Record Date and before
the opening of business at such Office or Agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such Office or Agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date for payment of Defaulted Interest, as the
case may be (or, if such Coupon is so surrendered with such Bearer Security,
such Coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, shall not be
payable on such Interest Payment Date or proposed date for payment or Defaulted
Interest, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but shall be payable only to the Holder of
such Coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities (with all Coupons, in the
case of the issuance of Bearer Securities), having endorsed thereon Guarantees
of the Guarantor, which the Holder making the exchange is entitled to receive.
If the Holder of definitive Bearer Securities or definitive Registered
Securities requests in writing that such Securities be exchanged for an interest
in the applicable permanent global Registered Security, such Bearer Securities
or Registered Securities (as the case may be) will be exchangeable into an equal
aggregate principal amount of beneficial interest in the permanent global
Registered Security; provided that in the case of definitive Bearer Securities,
-------- ----
such Bearer Securities are only exchanged in the manner set forth in this
Section 305 with respect to the exchange of definitive Bearer Securities for
Registered Securities and in the case of Registered Securities, such exchange is
made in accordance with the rules and procedures then in effect of the
Depository. Upon any exchange as provided in the immediately preceding sentence,
the Trustee shall cancel such Bearer Securities or Registered Securities (as the
case may be) and cause, or direct any custodian for the permanent global
Registered Security to cause, in accordance with the standing instructions and
procedures existing between the Depository and any such custodian, the aggregate
principal amount of Securities represented by the permanent global Registered
Security to be increased accordingly. If no permanent global Registered
Securities are then outstanding, the Company shall issue and the Trustee shall
authenticate a new permanent global Registered Security in the appropriate
principal amount, having endorsed thereon a Guarantee duly executed by the
Guarantor.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any permanent global Registered Security shall be
exchangeable for Definitive
35
Securities only if (i) the Depository is at any time unwilling, unable or
ineligible to continue as Depository or ceases to be a clearing agency
registered under the Exchange Act (if so required by applicable law or
regulation) and a successor depository is not appointed by the Company within 90
days of the date the Company is so informed in writing, (ii) the Company
executes and delivers to the Trustee a Company Order to the effect that such
permanent global Registered Security shall be so exchangeable or (iii) an Event
of Default has occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a permanent global Registered Security are
entitled to exchange such interests for Definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, then
without unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee Definitive Securities in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
permanent global Registered Security, executed by the Company. On or after the
earliest date on which such interests may be so exchanged, such permanent global
Registered Security shall be surrendered from time to time by the U.S.
Depository or such other Depository as shall be specified in the Company Order
with respect thereto, and in accordance with instructions given to the Trustee
and the U.S. Depository or such other Depository, as the case may be (which
instructions shall be in writing but need not be contained in or accompanied by
an Officers' Certificate or be accompanied by an Opinion of Counsel), as shall
be specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
Definitive Securities as described above without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such surrendered permanent global Registered Security, a like aggregate
principal amount of Definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global
Registered Security to be exchanged, which shall be in the form of Registered
Securities; provided, however, that no such exchanges may occur during a period
-------- -------
beginning at the opening of business 15 days before any selection of Securities
of the same series to be redeemed and ending at the close of business on the day
of such selection. Promptly following any such exchange in part, a permanent
global Registered Security for the portions not exchanged shall be returned by
the Trustee to such Depository or the U.S. Depository, as the case may be, or
such other Depository or U.S. Depository referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a permanent global Registered Security
after the close of business at the applicable Office or Agency for such Security
where such exchange occurs on or after (i) any Regular Record Date for such
Security and before the opening of business at such Office or Agency on the next
Interest Payment Date, or (ii) any Special Record Date for such Security and
before the opening of business at such Office or Agency on the related proposed
date for payment of Defaulted Interest, as the case may be, interest shall not
be payable on such Interest Payment Date or proposed date for payment of
Defaulted Interest, as the case may be, in respect of such Registered Security,
but shall be payable on such Interest Payment Date or proposed date for payment
of Defaulted Interest, as the case may be, only to the Person to whom interest
in respect of such portion of such permanent global Registered Security shall be
payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities, and all Guarantees endorsed thereon, shall be the valid obligations
of the Company or the Guarantor, as
36
the case may be, evidencing the same debt and entitling the Holders thereof to
the same benefits under this Indenture as the Securities and all the Guarantees
endorsed thereon surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any stamp or similar tax or other governmental charge
and any other expenses (including fees and expenses of the Trustee) that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 1107 or 1202, or upon
repayment in part of any Registered Security pursuant to Article Fifteen, in
each case not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of the selection for redemption of Securities of like tenor and
the same series under Section 1103 and ending at the close of business on the
day of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount, having endorsed thereon the
Guarantee of the Guarantor, and bearing a number not contemporaneously
outstanding, with Coupons appertaining thereto corresponding to the Coupons, if
any, appertaining to the surrendered Security; provided, however, that any
-------- -------
Bearer Security or any Coupon shall be delivered only outside the United States
and, if the Securities of such series are listed on the London Stock Exchange or
the Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, such delivery shall
occur at the Office or Agency located in London, Luxembourg or any other
required city located
37
outside the United States, as the case may be, so long as Securities of such
series are listed on such exchange; and provided, further, that all Bearer
-------- -------
Securities shall be delivered and received in person.
If there be delivered to the Company, the Guarantor and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company, the Guarantor or the Trustee that such Security or
Coupon has been acquired by a bona fide purchaser, the Company shall execute
and, upon the Company's request the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
Coupon appertains with all appurtenant Coupons not destroyed, lost or stolen, a
new Security of the same series containing identical terms and of like principal
amount, having endorsed thereon the Guarantee of the Guarantor, and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains;
provided, however, that any Bearer Security or any Coupon shall be delivered
-------- -------
only outside the United States and, if the Securities of such series are listed
on the London Stock Exchange or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, such delivery shall occur at the Office or Agency located in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as Securities of such series are listed on such exchange;
and provided, further, that all Bearer Securities shall be delivered and
-------- -------
received in person.
Notwithstanding the foregoing provisions of this Section 306, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or will
become due and payable within seven (7) days, the Company in its discretion, but
subject to any conversion rights, may, instead of issuing a new Security, pay
such Security or Coupon; provided, however, that payment of principal of, any
-------- -------
premium or interest on or any Additional Amounts with respect to any Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at the applicable Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any stamp or similar tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security with any Coupons appertaining thereto, and the
Guarantee of the Guarantor endorsed thereon, issued pursuant to this Section 306
in lieu of any mutilated, destroyed, lost or stolen Security, or in exchange for
a Security to which a mutilated, destroyed, lost or stolen Coupon appertains
shall constitute a separate obligation of the Company and the Guarantor,
respectively, whether or not the mutilated, destroyed, lost or stolen Security
and
38
Coupons appertaining thereto or the mutilated, destroyed, lost or stolen Coupon
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of such series and any Coupons, and related Guarantees, duly issued
hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
-------------------------------------------------------------
Interest and Certain Additional Amounts Preserved.
-------------------------------------------------
(a) Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made (i) by check
mailed or delivered, in the case of Registered Securities, to the address of the
Person entitled thereto as such address shall appear in the Security Register
or, in the case of Bearer Securities, upon presentation and surrender of the
appropriate Coupon appertaining thereto, or (ii) at the option of the Company
with the consent of any Paying Agent, (1) in the case of a Bearer Security, upon
presentation and surrender of the applicable Coupon at an applicable Office or
Agency for such series outside the United States, except as otherwise provided
in Section 1002, by transfer to an account maintained by the payee with a bank
located outside the United States, or (2) in the case of a Registered Security,
by transfer to an account maintained by the payee with a bank located inside the
United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, EUROCLEAR and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depository, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
Unless otherwise provided in or pursuant to this Indenture, in case a
Bearer Security is surrendered in exchange for a Registered Security after the
close of business at the applicable Office or Agency for such Security on any
Regular Record Date therefor and before the opening of business at such Office
or Agency on the next succeeding Interest Payment Date therefor, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date and interest shall not be payable on such Interest Payment Date in
respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
39
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Bearer Security
shall, except as otherwise provided in Section 1002, be payable only at an
Office or Agency for such Securities located outside the United States.
Interest on any temporary global Bearer Security shall be payable only
after the issuance of a Definitive Security for which it is exchangeable as
provided in Section 304, except as otherwise provided pursuant to this Indenture
or the Securities.
(b) Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Person in whose name such Registered Security (or a Predecessor Security
thereof) shall be registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on such Registered Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as in this clause
provided. Thereupon, the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of such Registered Security (or a
Predecessor Security thereof) at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The Trustee
may, in its discretion, in the name and at the expense of the Company cause a
similar notice to be published at least once in an Authorized Newspaper of
general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such Registered
Security (or a Predecessor Security thereof) shall be registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2). In case a Bearer Security is surrendered at the
applicable Office or Agency for such Security in exchange for a Registered
Security after the close of business at such Office or Agency on any Special
Record Date and before the opening of business at such Office or Agency on the
related proposed date for
40
payment of Defaulted Interest, such Bearer Security shall be surrendered without
the Coupon relating to such Defaulted Interest and Defaulted Interest shall not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which such Security may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(c) In the case of any Registered Security which is converted into
Common Stock pursuant to Article Twelve after any Regular Record Date and on or
prior to the next succeeding Interest Payment Date (other than any Registered
Security whose Maturity is prior to such Interest Payment Date), interest whose
Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record Date.
Except as otherwise expressly provided in the immediately preceding sentence, in
the case of any Security which is converted pursuant to Article Twelve, accrued
interest from the immediately preceding Interest Payment Date until the
Conversion Date shall be payable to the converting Holder within five Business
Days after the Conversion Date. Upon presentment for conversion of any
Securities pursuant to Article Twelve, the Paying Agent shall promptly notify
the Company of the amount of any accrued interest due and owing thereon and the
Company shall pay to the Paying Agent an amount sufficient to pay the accrued
interest due on such Securities and Additional Amounts, if any, thereon, and the
Paying Agent shall apply the amounts so paid to it to the payment of such
accrued interest and Additional Amounts, if any, thereon in accordance with the
terms of the Securities.
(d) Subject to the foregoing provisions of this Section 307 and Section
305, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
---------------------
Title to any Bearer Security or Coupon shall pass by delivery. The
Company, the Guarantor, the Trustee, the Paying Agent and any other agent of the
Company, the Guarantor, the Trustee or the Paying Agent may treat the bearer of
any Bearer Security or the temporary global Bearer Security and the bearer of
any Coupon as the absolute owner of such Security or Coupon, as the case may be,
for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or Coupon be overdue,
and neither the Company, the Guarantor, the Trustee, the Paying Agent nor any
other agent of the Company, the Guarantor, the Trustee or the Paying Agent shall
be affected by notice to the contrary.
41
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee shall treat the Person in whose name such
Registered Security is registered in the Security Register as the absolute owner
of such Registered Security for the purpose of receiving payment of principal
of, any premium and (subject to Sections 305 and 307) interest on and any
Additional Amounts with respect to such Registered Security and for all other
purposes whatsoever, whether or not any payment with respect to such Registered
Security shall be overdue, and neither the Company, the Guarantor, the Trustee
or any agent of the Company, the Guarantor or the Trustee shall be affected by
notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Guarantor, the Trustee, and any agent of the Company, the Guarantor or the
Trustee as the owner of such global Security for all purposes whatsoever. None
of the Company, the Guarantor, the Trustee, any Paying Agent, any Conversion
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Section 309. Cancellation.
------------
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be canceled promptly by the Trustee. The Company or the Guarantor may at
any time deliver to the Trustee for cancellation any Securities or Coupons
previously authenticated and delivered hereunder which the Company or the
Guarantor may have acquired in any manner whatsoever, and all Securities or
Coupons so delivered shall be canceled promptly by the Trustee. No Securities or
Coupons shall be authenticated in lieu of or in exchange for any Securities or
Coupons canceled as provided in this Section 309, except as expressly permitted
by or pursuant to this Indenture. All canceled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee, unless by a Company Order the
Company directs their return to it.
Section 310. Computation of Interest.
-----------------------
Except as otherwise provided in or pursuant to this Indenture or in the
Securities of any series, interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers
-------------
The Company in issuing Registered Securities may use "CUSIP" numbers
(if then generally in use) in addition to serial numbers, and in issuing Bearer
Securities may use "ISIN"
42
numbers (if then generally in use); if so, the Trustee shall use such "CUSIP"
and "ISIN" numbers in addition to serial numbers in notices of redemption and
repayment as a convenience to Holders; provided that any such notice may state
-------- ----
that no representation is made as to the correctness of such CUSIP and ISIN
numbers either as printed on the Securities or as contained in any notice of a
redemption or repayment and that reliance may be placed only on the serial or
other identification numbers printed on the Securities, and any such redemption
or repayment shall not be affected by any defect in or omission of such CUSIP or
ISIN numbers.
Section 312. Notification of Withholding
---------------------------
The Company shall notify the Trustee in writing of the necessity, if any,
to withhold any amounts from payments to Holders (and the amount of any such
withholding).
43
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
--------------------------
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto (except as
to any surviving rights of conversion, or registration of transfer or exchange
or replacement of Securities herein expressly provided for and any right to
receive Additional Amounts and the Company's obligations to the Trustee pursuant
to Section 606), and the Trustee, on receipt of a Company Order, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all Coupons appertaining thereto (other than (i)
Coupons appertaining to Bearer Securities of such series surrendered in
exchange for Registered Securities of such series and maturing after
such exchange whose surrender is not required or has been waived as
provided in Xxxxxxx 000, (xx) Securities and Coupons of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Xxxxxxx 000, (xxx) Coupons appertaining to
Securities of such series called for redemption and maturing after the
relevant Redemption Date whose surrender has been waived as provided in
Section 1106, and (iv) Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company or the Guarantor and thereafter repaid to
the Company or the Guarantor or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee for cancellation;
or
(B) all Securities of such series and any Coupons appertaining
thereto not theretofore delivered to the Trustee or the Paying Agent
for cancellation (other than Securities or Coupons referred to in
clauses (i) through (iii) of clause (A) above)
(i) have become due and payable, or
(ii) will have become due and payable at their Stated
Maturity within one year and such Securities are not convertible into
or exchangeable for other securities, or
(iii) if redeemable at the option of the Company, such
Securities are not convertible into or exchangeable for other
securities and are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
44
and the Company or the Guarantor, in the case of (i), (ii), or (iii)
above, has irrevocably deposited or caused to be deposited with the
Trustee as trust funds (immediately available to the Holders in the
case of clause (i) above) in trust for such purpose, money in the
Currency in which such Securities are payable in an amount sufficient
to pay and discharge the entire indebtedness on such Securities and any
Coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation, including the principal of, any premium and interest
on, and, to the extent that the Securities of such series provide for
the payment of Additional Amounts thereon and the amount of any such
Additional Amounts is at the time of deposit reasonably determinable by
the Company (in the exercise by the Company of its sole and absolute
discretion), any Additional Amounts with respect to such Securities and
any Coupons appertaining thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the
Maturity thereof, as the case may be;
(2) the Company or the Guarantor, as the case may be, has paid or
caused to be paid all other sums payable hereunder by the Company or
the Guarantor with respect to the Outstanding Securities of such series
and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company and the
Guarantor to the Trustee under Section 606, the obligations of the Company and
the Guarantor to any Authenticating Agent under Section 612, and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section,
the obligations of the Company, the Guarantor and the Trustee with respect to
the Securities of such series under Sections 305, 306, 403, 1002 and 1003, and
with respect to the payment of Additional Amounts, if any, with respect to such
Securities as contemplated by Section 1004 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to Section
401(B)(iii)), shall survive.
Section 402. Defeasance and Covenant Defeasance.
----------------------------------
(1) Unless, pursuant to Section 301, provision is made for either or
both of (i) defeasance of the Securities of or within a series under clause (2)
of this Section 402 or (ii) covenant defeasance of the Securities of or within a
series under clause (3) of this Section 402, such provisions, together with the
other provisions of this Section 402, shall not be applicable to such Securities
and any Coupons appertaining thereto.
45
(2) Upon the Company's exercise of the above option applicable to this
Section 402(2) with respect to any Securities of or within a series, the Company
and the Guarantor shall be deemed to have been discharged from their respective
obligations with respect to such Outstanding Securities and any Coupons
appertaining thereto, and with respect to the corresponding Guarantees on the
date the conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
----------
Company and the Guarantor shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and Guarantees and any
Coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of clause (5) of this Section 402 and the
other Sections of this Indenture referred to in clauses (i) and (ii) below, and
to have satisfied all of its other obligations under such Securities and any
Coupons appertaining thereto and under such corresponding Guarantees and this
Indenture insofar as such Securities and any Coupons appertaining thereto and
such Guarantees are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Outstanding Securities and
Guarantees and any Coupons appertaining thereto to receive, solely from the
trust fund described in clause (4) of this Section 402 and as more fully set
forth in such Section, payments in respect of the principal of (and premium, if
any) and interest, if any, on, and Additional Amounts, if any, with respect to,
such Securities and Guarantees and any Coupons appertaining thereto when such
payments are due, (ii) the obligations of the Company and the Trustee with
respect to such Securities under Sections 304, 305, 306, 403, 1002 and 1003,
with respect to the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1004 (but only to the extent that the Additional Amounts
payable with respect to such Securities exceed the amount deposited in respect
of such Additional Amounts pursuant to Section 402(4)(a) below), and any
obligation of the Guarantor relating to a surviving obligation of the Company,
(iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, (iv) any rights of conversion or exchange of such Securities and (v)
this Section 402. The Company may exercise its option under this Section 402(2)
notwithstanding the prior exercise of its option under clause (3) of this
Section 402 with respect to such Securities and any Coupons appertaining
thereto.
(3) Upon the Company's exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the Company
and the Guarantor, as the case may be, shall be released from its obligations
under Sections 1005 and Section 102 and, to the extent specified pursuant to
Section 301, any other covenant applicable to such Securities, with respect to
such Outstanding Securities and any Coupons appertaining thereto on and after
the date the conditions set forth in clause (4) of this Section 402 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
-------------------
Coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with any such
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any Coupons appertaining thereto, the Company
and the Guarantor may omit to comply with, and shall have no liability in
respect of, any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason
46
of reference in any such Section or such other covenant to any other provision
herein or in any other document and such omission to comply shall not constitute
a default or an Event of Default under Section 501(4) or otherwise, as the case
may be, but, except as specified above, the remainder of this Indenture and such
Securities and Coupons appertaining thereto, and the Guarantees endorsed
thereon, shall be unaffected thereby.
(4) The following shall be the conditions to application of clause
(2) or (3) of this Section 402 to any Outstanding Securities of or within a
series and any Coupons appertaining thereto, or to any Guarantees endorsed
thereon:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Section 402
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 benefit of the Holders of such Securities and any Coupons appertaining
thereto, (i) an amount in Dollars, or (ii) Government Obligations applicable to
such Securities and Coupons appertaining thereto (determined on the basis of the
Currency in which such Securities and Coupons appertaining thereto are then
specified as payable at Stated Maturity) 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 of principal
of (and premium, if any) and interest, if any, on such Securities and any
Coupons appertaining thereto, money in an amount, or (iii) a combination
thereof, in any case, in an amount, sufficient, without consideration of any
reinvestment of such principal and interest, 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 other qualifying trustee) to pay and
discharge, (y) the principal of (and premium, if any) and interest, if any, on,
and, to the extent that such Securities provide for the payment of Additional
Amounts thereon and the amount of any such Additional Amounts is at the time of
deposit reasonably determinable by the Company, any Additional Amounts with
respect to, such Outstanding Securities and any Coupons appertaining thereto on
the Stated Maturity of such principal or installment of principal or interest
and (z) any mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any Coupons appertaining thereto on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company or the Guarantor is a
party or by which it is bound.
(c) No Default or Event of Default with respect to such Securities and
any Coupons appertaining thereto shall have occurred and be continuing on the
date of such deposit and, with respect to defeasance only, at any time during
the period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
47
(d) In the case of an election under clause (2) of this Section 402,
the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from the Internal Revenue Service a letter
ruling, or there has been published by the Internal Revenue Service a revenue
ruling, or (ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred.
(e) In the case of an election under clause (3) of this Section 402,
the Company and the Guarantor shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred.
(f) The Company and the Guarantor shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance under clause (2)
or (3) of this Section 402 (as the case may be) have been complied with.
(g) Each of the Company and the Guarantor 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.
(h) 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).
(i) 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.
(j) Notwithstanding any other provisions of this Section 402(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company or the Guarantor in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003,
all money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee--collectively for purposes of this Section
402(5) and Section 403, the "Trustee") pursuant to clause (4) of Section 402 in
-------
respect of any Outstanding Securities of any series and any Coupons
48
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any Coupons appertaining
thereto and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any Coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest and Additional Amounts, if any, but
such money need not be segregated from other funds except to the extent required
by law.
The Company and the Guarantor shall pay and indemnify the Trustee and
its officers, directors, employees and agents against any tax, fee or other
charge, imposed on or assessed against the Government Obligations deposited
pursuant to this Section 402 or the principal or 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 such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 402 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 a defeasance or covenant defeasance, as applicable, in accordance with
this Section 402.
Section 403. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations deposited with the Trustee pursuant to Section
401 or 402 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the Coupons appertaining thereto, the Guarantees
and this Indenture, as applicable, to the payment, either directly or through
any Paying Agent (including the Company or the Guarantor acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal, premium, interest and Additional Amounts for whose payment such
money has or Government Obligations have been deposited with or received by the
Trustee; but such money and Government Obligations need not be segregated from
other funds except to the extent required by law.
49
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of
----------------
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) unless
such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Company and Guarantor Board Resolutions or Company and
Guarantor Officers' Certificate establishing the terms of such series pursuant
to this Indenture:
(1) default in the payment of any interest on, or any Additional
Amounts payable in respect of any interest on, any Security of such series when
such interest or such Additional Amounts, as the case may be, become due and
payable, and continuance of such default for a period of 10 days, whether or not
such payment is prohibited by the subordination provisions of Article Seventeen
or Article Eighteen; or
(2) default in the payment of the principal of or premium, if any, on,
or any Additional Amounts payable in respect of the principal of or premium, if
any, on any Security of such series when due upon Maturity (whether upon
redemption or otherwise), whether or not such payment is prohibited by the
subordination provisions of Article Seventeen or Article Eighteen; or
(3) default in the payment of any sinking fund payment, or analogous
payment, when and as due by the terms of a Security of such series, whether or
not such payment is prohibited by the subordination provisions of Article
Seventeen or Article Eighteen; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company or the Guarantor in this Indenture or any Security of such series
(other than a covenant or warranty for which the consequences of breach or
nonperformance are addressed elsewhere in this Section 501 or in the Securities
or in a covenant or warranty which has expressly been included in this Indenture
or a Security of that series, whether or not by means of a supplemental
Indenture, solely for the benefit of Securities of a series other than such
series), and continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of
such series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" hereunder;
or
50
(5) the Company or the Guarantor pursuant to or under or within the
meaning of any Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of an order for relief against it in
an involuntary case or proceeding or the commencement of any case
against it;
(c) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(d) makes a general assignment for the benefit of its
creditors;
(e) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
(f) consents to the filing of such petition or the appointment
of or taking possession by a Custodian; or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against the Company or the Guarantor in an
involuntary case or proceeding, or adjudicates the Company or the
Guarantor insolvent or bankrupt;
(b) appoints a Custodian of the Company or the Guarantor or for
any substantial part of their respective property; or
(c) orders the winding up or liquidation of the Company or the
Guarantor;
and the order or decree remains unstayed and in effect for
20 consecutive days; or
(7) a default by the Company (including a default with respect to
Securities of any series other than that series) under any indenture, including
this Indenture, or instrument evidencing, or under which the Company has at the
date of this Indenture or shall hereafter have, any indebtedness for money
borrowed with a principal amount then outstanding in excess of $25,000,000 or
such other amount as may be specified in the Company's Board Resolutions or
Officers' Certificate establishing the series (or the equivalent in any other
currency) shall happen and be continuing and such indebtedness shall have been
accelerated so that the same shall be or become due and payable prior to the
date on which the same would otherwise have become due and payable, or a default
in payment of such indebtedness at its stated maturity shall have occurred, and
such indebtedness shall not have been discharged or such acceleration shall not
be rescinded or annulled within 20 days after written notice thereof shall have
been given, by registered or certified mail, to the Company and the Guarantor by
the Trustee, or to the Company, the Guarantor and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of that
series; provided, however, that if such default under
-------- -------
51
such indenture or instrument shall be remedied or cured by the Company or waived
by the holders of such indebtedness, then the Event of Default hereunder by
reason thereof shall be deemed likewise to have been thereupon remedied, cured
or waived without further action upon the part of either the Trustee or any of
the Holders; provided, further, however, that subject to the provisions of
-------- -------
Section 601, the Trustee will not be considered to have knowledge of any default
by the Company under this Section 501 unless the Trustee shall have received
written or actual notice of such default; or
(8) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
--------------
Federal or state law for the relief of debtors. "Custodian" means any receiver,
---------
trustee, assignee, liquidator, sequestrator, custodian or similar official under
any Bankruptcy Law.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing throughout the period permitted under
this Indenture or any supplemental indenture to cure such default, then the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities of such series, or such lesser amount as may be provided for in the
Securities of such series, to be due and payable immediately, by a notice in
writing to the Company and the Guarantor (and to the Trustee if given by the
Holders), and upon any such declaration such principal or such lesser amount
shall become immediately due and payable.
Notwithstanding any other provision of Section 502, if an Event of
Default specified in Section 501(5) or 501(6) occurs, all principal of, any
premium and interest on, and any Additional Amounts on the Securities then
Outstanding shall be immediately due and payable without any declaration or
other act on the part of the Trustee or the Holders.
At any time after Securities of any series have been accelerated and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article Five provided, the Holders of not
less than a majority in principal amount of the Outstanding Securities of such
series, by written notice to the Company, the Guarantor and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum of money sufficient to pay
(a) all overdue installments of any interest on any Securities of
such series and any Coupons appertaining thereto and any Additional Amounts with
respect thereto,
52
(b) the principal of and any premium on any Securities of such series
which have become due otherwise than by such declaration of acceleration and any
Additional Amounts with respect thereto and, to the extent the payment of such
interest is lawful, interest thereon at the rate or rates borne by or provided
for in such Securities,
(c) to the extent that payment of such interest is lawful, interest
upon overdue installments of any interest and any Additional Amounts with
respect thereto at the rate or rates borne by or provided for in such
Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due the Trustee under Section 606;
and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of, any premium and interest on, and
any Additional Amounts with respect to Securities of such series which shall
have become due solely by such declaration of acceleration, shall have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any installment of interest on
or any Additional Amounts with respect to any Security or any Coupon
appertaining thereto when such interest or Additional Amounts shall have become
due and payable and such default continues for a period of 10 days, or
(2) default is made in the payment of the principal of or any
premium on any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money 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 and all other
amounts due to the Trustee under Section 606.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph, forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money
53
so due and unpaid, and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company, the Guarantor or any other
obligor upon such Securities and any Coupons appertaining thereto and collect
the monies adjudged or decreed to be payable in the manner provided by law out
of the property of the Company, the Guarantor or any other obligor upon such
Securities and any Coupons appertaining thereto, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, the Guarantor or any other obligor
upon the Securities or the property of the Company, the Guarantor, or such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company or the Guarantor for the payment of any overdue
principal, premium, interest or Additional Amounts) shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding, including:
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the principal
and any premium, interest and Additional Amounts owing and unpaid in respect of
the Securities and any Coupons appertaining thereto and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents or counsel) and of the
Holders of Securities or any Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons 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 of Securities or any Coupons, 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 606.
54
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding; provided, however, that the
-------- -------
Trustee may, on behalf of the Holders of Securities or any Coupons, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities or
--------------------------------------------------------------
Coupons.
-------
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Subject to Article Thirteen, any money collected by the Trustee
pursuant to this Article Five shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal, or any premium, interest or Additional Amounts,
upon presentation of the Securities or Coupons, or both, as the case may be, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest and
Additional Amounts 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 aggregate amounts due and payable on such Securities and
Coupons for principal and any premium, interest and Additional Amounts,
respectively;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 507. Limitations on Suits.
--------------------
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, the Guarantees, the Securities of any series or
any Coupons appertaining thereto, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
55
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal and Any
-----------------------------------------------------------
Premium, Interest and Additional Amounts.
----------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Section 307) interest on, and any Additional Amounts with respect to such
Security or such Coupon, as the case may be, on the respective Stated Maturity
or Maturities therefor specified in such Security or Coupon (or, in the case of
redemption, on the Redemption Date or, in the case of repayment at the option of
such Holder if provided in or pursuant to this Indenture, on the Repayment Date)
and to convert such Security in accordance with Article Twelve (if conversion is
permitted by the terms of such Security), and to institute suit for the
enforcement of any such payment and right to convert, and such rights shall not
be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Guarantor, the Trustee and each such Holder shall, subject
to any determination in such proceeding, be restored severally and respectively
to their
56
former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or a Coupon is intended
to be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
Five or by law to the Trustee or to any Holder of a Security or a Coupon may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or (subject to the limitations contained in this Indenture) by such
Holder, as the case may be.
Section 512. Control by Holders of Securities.
--------------------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
-------- ----
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of such series,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) such Holders have offered the Trustee an indemnity reasonably
satisfactory to it against any loss, cost, liability or expense that might been
incurred by the Trustee in following such direction.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons
57
appertaining thereto may waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of, any premium or interest on, or
any Additional Amounts with respect to, any Security of such series or any
Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any 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 514. Waiver of Usury, Stay or Extension Laws.
---------------------------------------
Each of the Company and the Guarantor covenants that (to the extent
that it may lawfully do so) it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any usury, stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor expressly waives (to the extent that it may lawfully
do so) all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 515. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 515 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right to convert any Security in
accordance with Article Twelve.
58
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee; Certain Duties and Responsibilities.
--------------------------------------------------------------
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or other paper or
document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company or the Guarantor mentioned
herein shall be sufficiently evidenced by a Company Request or a Company Order
or Guarantor Request or Guarantor Order, as the case may be (in each case, other
than delivery of any Security, together with any Coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein) and any resolution of the
Board of Directors of the Company or the Guarantor, as the case may be, shall be
sufficiently evidenced by a Board Resolution of the Company or the Guarantor, as
the case may be;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
shall be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the request or
direction of any of the Holders of Securities of any series or any Coupons
appertaining thereto pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine,
during business hours
59
and upon reasonable notice, the books, records and premises of the Company and
the Guarantor, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(8) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(9) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that this paragraph (9) shall not
be construed to limit the effect of paragraph (8) of this Section;
(a) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(b) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority
in principal amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or indemnity reasonably
satisfactory to it against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this
Section 601.
Section 602. Notice of Defaults.
------------------
Within 90 days after the occurrence of any Default (actually known to a
Responsible Officer of the Trustee) hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of Securities of
such series entitled to receive reports pursuant to Section 703(3), notice of
such Default hereunder known to the Trustee, unless such Default shall have been
cured or waived; provided, however, that, except in the case of a default in the
-------- -------
payment of the principal of (or premium, if any), or interest, if any, on, or
Additional Amounts or any sinking fund or purchase fund installment with respect
to, any Security of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the
60
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the best interest of the Holders of Securities and Coupons of such
series, and provided, further, that in the case of any Default of the character
-------- -------
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof.
Section 603. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company or the Guarantor, as the case may be, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or Coupons appertaining
thereto or the Guarantees or the Common Stock issuable upon the conversion of
Securities in accordance with the provisions of Article Twelve, except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility and Qualification
on Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of the
Securities or the proceeds thereof.
Section 604. May Hold Securities; Act as Trustee Under Other Indenture.
---------------------------------------------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee, the Company,
or the Guarantor, in its individual or any other capacity, may become the owner
or pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of
the Trust Indenture Act, may otherwise deal with the Company and the Guarantor
with the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
The Trustee may become and act as trustee under other indentures under
which other securities, or certificates of interest or participation in other
securities, of the Company are outstanding in the same manner as if it were not
Trustee hereunder.
Section 605. Money Held in Trust.
-------------------
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company or the Guarantor, as the case may
be.
61
Section 606. Compensation and Reimbursement.
------------------------------
Each of the Company and the Guarantor agrees:
(1) to pay to the Trustee from time to time reasonable compensation as
shall be agreed in writing between the Company on the one hand and the Trustee
on the other for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its officers, directors, employees
and agents for, and to hold them harmless against, any loss, liability or
expense incurred without negligence or bad faith on their part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder, except to the extent that any such loss,
liability or expense was due to the Trustee's negligence or bad faith. The
indemnification provided for herein shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee.
As security for the performance of the obligations of the Company under
this Section 606, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501 is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. "Trustee" for purposes
-------
of this Section 606 shall include any predecessor Trustee but the negligence or
bad faith of any Trustee shall not affect the rights of any other Trustee under
this Section 606.
Section 607. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States, eligible under
Section 310(a)(1) of the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the Trust
Indenture Act) of at least $50,000,000 subject to supervision or examination by
Federal or state authority. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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Section 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company and the Guarantor.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act with
respect to Securities of any series after written request therefor by
the Company, the Guarantor or any Holder of a Security of such series
who has been a bona fide Holder of a Security of such series for at
least six months, or
(b) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company,
the Guarantor or any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged to be bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board
Resolution, may remove the Trustee with respect to all Securities or the
Securities of such series, or (ii) subject to Section 315(e) of the Trust
Indenture Act, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being
63
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 609. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
609, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 609, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(6) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of event by first-class mail, postage prepaid, to the Holders of
Registered Securities, if any, of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issued as
Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment located outside the United States. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
(7) The retiring Trustee shall not be liable for any of the acts or
omissions of any successor Trustee appointed hereunder.
(8) No appointment of a successor Trustee shall be effective until all
fees, charges and expenses of the retiring Trustee not subject to any good faith
dispute, have been paid.
Section 609. Acceptance of Appointment by Successor.
--------------------------------------
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company, the Guarantor and the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties hereunder of the retiring Trustee;
but, on the request of the Company, the Guarantor or such successor Trustee,
such retiring Trustee, upon payment of its charges, shall execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and, subject to Section 1003, shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
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(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more series, the Company, the Guarantor, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (b) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (c) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and, upon the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates other than as hereinafter expressly set forth, and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company, the Guarantor
or such successor Trustee, such retiring Trustee, upon payment of its charges
with respect to the Securities of that or those series to which the appointment
of such successor relates and subject to Section 1003 shall duly assign,
transfer and deliver to such successor Trustee, to the extent contemplated by
such supplemental indenture, the property and money held by retiring Trustee
hereunder with respect to the securities of that or those series to which the
appointment of such successor Trustee relates, subject to its claim, if any,
provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor
Trustee, the Company or the Guarantor shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (1) or (2) of this
Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article Six.
Section 610. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation
65
to which the Trustee shall be a party, or any Corporation succeeding to all or
all of the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided such Corporation shall be otherwise qualified
and eligible under this Article Six, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated but not delivered by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 611. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company,
the Guarantor or any other obligor upon the Securities, the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company, the Guarantor or any such other obligor.
Section 612. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment, or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and,
except as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee, the Company and the Guarantor. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent, the Company and the Guarantor. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall (i) mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of the series with respect to which
such Authenticating Agent shall serve, as their names and addresses appear in
the Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: [NAME OF TRUSTEE],
---------------- As Trustee
By: [NAME OF AUTHENTICATION AGENT]
As Authenticating Agent
By:
-----------------------
Authorized Officer
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If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section 612 an Authenticating Agent having an
office in a Place of Payment designated by the Company with respect to such
series of Securities.
Section 613. Conflicting Interests.
---------------------
If the Trustee has or shall acquire any conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or a trustee under prior indentures between
the Company and the Trustee that have not been satisfied and discharged and that
may be excluded by the proviso to Section 310(b)(1) of the Trust Indenture Act.
Section 614. Protection of Agents.
--------------------
Any Authenticating Agent, Conversion Agent, Paying Agent or Securities
Registrar hereunder shall be entitled to all of the rights, immunities,
indemnities and protections afforded to the Trustee hereunder.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
Section 701. Company and Guarantor to Furnish Trustee Names and Addresses of
---------------------------------------------------------------
Holders
-------
In accordance with Section 312(a) of the Trust Indenture Act, with
respect to each series of the Securities, the Company and the Guarantor shall
furnish or cause to be furnished to the Trustee:
(1) semi-annually, not later than 15 days after the Regular Record Date
or upon such other dates as are set forth in or pursuant to the Board Resolution
or indenture supplemental hereto authorizing such series, a list for each series
of Securities, in such form as the Trustee may reasonably require, of the names
and addresses of Holders of Registered Securities as of the applicable date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company or the Guarantor of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is furnished, excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company, the Guarantor and the Trustee that neither the
Company, the Guarantor nor the Trustee, nor any agent of any of them, shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section
312(c) of the Trust Indenture Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(1) Within 60 days after August 30 of each year commencing
with the first August 30 following the first issuance of Securities
pursuant to Section 301, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to
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Section 313(c) of the Trust Indenture Act, a brief report dated as
of such August 30 with respect to any of the events specified in said
Section 313(a) which may have occurred since the later of the
immediately preceding August 30 and the date of this Indenture.
(2) The Trustee shall transmit to Holders the reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the
manner specified therein.
(3) Reports pursuant to this Section shall be transmitted
in the manner and to the Persons required by Sections 313(c) and 313(d)
of the Trust Indenture Act.
Section 704. Reports by Company and Guarantor.
--------------------------------
The Company and the Guarantor, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company
and the Guarantor are required to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company and the Guarantor may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company or the Guarantor is not required to
file information, documents or reports pursuant to either of said
Sections, then they shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company and the Guarantor with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, such summaries of any information, documents
and reports required to be filed by the Company and the Guarantor
pursuant to paragraphs (1) and (2) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company or Guarantor May Consolidate, Etc., Only on Certain Terms.
-----------------------------------------------------------------
Neither the Company nor the Guarantor shall consolidate with or merge
into any other Person or convey, transfer or lease all or substantially all of
its properties and assets to any Person, and neither the Company nor the
Guarantor shall permit any Person to consolidate with or merge into the Company
or the Guarantor, as the case may be, or convey, transfer or lease all or
substantially all of its properties and assets to the Company or the Guarantor,
as the case may be, unless either:
(a) in case the Company or the Guarantor, as the case may be,
shall consolidate with or merge into another Person or convey, transfer
or lease all or substantially all of its properties and assets to any
Person, the Person formed by such consolidation or into which the
Company or the Guarantor, as the case may be, is merged or the Person
which acquires by conveyance or transfer, or which leases, all or
substantially all of the properties and assets of the Company or the
Guarantor, as the case may be, shall be (i) a corporation, limited
liability company, partnership or trust organized and validly existing
under the laws of the United States or (ii) a corporation, limited
liability company, partnership or trust organized and validly existing
under the laws of a jurisdiction other than the United States (a
"Foreign Entity") that shall expressly assume, by an indenture
--------------
supplemental hereto executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, in the case of the Company, the
due and punctual payment of the principal of (and premium, if any) and
interest and Additional Amounts on all the Securities and Coupons and
the performance and observance of every covenant of this Indenture on
the part of the Company to be performed or observed and shall have
provided for conversion rights in accordance with Article Twelve, and,
in the case of the Guarantor, the due and punctual performance of the
Guarantees and the performance and observance of every covenant of this
Indenture on the part of the Guarantor to be performed or observed. In
the event that such Person is a Foreign Entity, it shall expressly agree
to make payments under the Securities and Coupons free of any deduction
or withholding for any and all then existing or future withholding
taxes, levies, imposts and charges whatsoever imposed by or for the
account of the jurisdiction where such Foreign Entity is generally
subject to taxation (or any political subdivision or taxing authority
thereof or therein) in a manner equivalent to that set forth herein,
subject to the exceptions contained elsewhere herein;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
one of its Subsidiaries or of the Guarantor or one of its Subsidiaries
as a result of such transaction as having been incurred by the Company,
the Guarantor or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
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(c) the Company or the Guarantor, as the case may be, has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 802. Successor Corporation Substituted.
---------------------------------
Upon any consolidation by the Company or the Guarantor, as the case may
be, with or merger by the Company or the Guarantor, as the case may be, into any
other Person or any conveyance, transfer or lease of all or substantially all of
the properties and assets of the Company or the Guarantor, as the case may be,
in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company or the Guarantor, as the case may be, is
merged or to which such conveyance, transfer or lease is made, shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
or the Guarantor, as the case may be, under this Indenture with the same effect
as if such successor Person had been named as the Company or the Guarantor, as
the case may be, herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or Coupons, the
Company, when authorized by or pursuant to a Board Resolution, the Guarantor,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the
Guarantor, as the case may be, and the assumption by any such successor of the
covenants of the Company or the Guarantor, as the case may be, contained herein
and in the Securities or the Guarantees; or
(2) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders of all or any series of Securities (as shall be specified
in such supplemental indenture or indentures and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are being included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company or the Guarantor; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the
72
payment of principal of, any premium or interest on or any Additional Amounts
with respect to Securities, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be exchanged for
Bearer Securities of additional authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided any such
action shall not adversely affect the interests of the Holders of Securities of
any series or any Coupons appertaining thereto in any material respect; or
(4) to establish the form or terms of Securities of any series and
any Coupons appertaining thereto as permitted by Sections 201 and 301 or of
the related Guarantees as permitted by Section 202; or
(5) 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 609;
or
(6) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not adversely affect the interests of the
Holders of Securities of any series then Outstanding or any Coupons appertaining
thereto in any material respect; or
(7) to add any additional Events of Default with respect to all or any
series of Securities (as shall be specified in such supplemental indenture and
if such additional Events of Default are to be for the benefit of less than all
series of Securities, stating that such additional Event of Default are
expressly being included solely for the benefit of such series); or
(8) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, provided that
any such action shall not adversely affect the interests of any Holder of a
Security of such series and any Coupons appertaining thereto or any other
Security or Coupon in any material respect; or
(9) to secure the Securities and Guarantees; or
(10) to amend or supplement any provision contained herein or in any
supplemental indenture (which amendment or supplement may apply to one or more
series of Securities or to one or more Securities within any series as specified
in such supplemental indenture or indentures), provided that such amendment or
supplement does not apply to any Outstanding Security issued prior to the date
of such supplemental indenture and entitled to the benefits of such provision or
modify the rights of the Holder of any such Security with respect to such
provision.
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Section 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, the Guarantor, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of the
Securities of such series or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any
premium or installment of principal or interest on or any Additional
Amounts with respect to, any Security, or any sinking fund or analogous
payment in respect thereof, or reduce the principal amount thereof or
the rate (or modify the calculation of such rate) of interest thereon
or any Additional Amounts with respect thereto, or any premium payable
upon the redemption thereof or otherwise, or change the obligation of
the Company to pay Additional Amounts pursuant to Section 1004, or
reduce the amount of the principal of any Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the amount thereof provable in bankruptcy
pursuant to Section 504, adversely affect the right of repayment at the
option of any Holder as contemplated by Article Fifteen, or change the
provisions of Article Ten relating to Place of Payment for Bearer
Securities being located outside the United States, or the Currency in
which the principal of, any premium or interest on, or any Additional
Amounts with respect to any Security or any sinking or analogous fund
payment in respect thereof, 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, in the case of repayment at the option of the
Holder, on or after the Repayment Date) or, except as permitted by
Article Twelve, adversely affect in any material respect the right to
convert or exchange any Security, or modify the provisions of this
Indenture with respect to the subordination of the Securities and the
Guarantees in a manner adverse to the Holders in any material respect,
or
(2) 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 reduce the
requirements of Section 1604 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 1001, 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; or
74
(4) change in any manner adverse in any material respect to
the interests of the Holders of any Outstanding Securities the terms
and conditions of the obligations of the Guarantor in respect of the
due and punctual payment of the principal thereof and any premium or
interest thereon or any sinking or analogous fund payments provided in
respect thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
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 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.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article Nine or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 315 of the Trust Indenture Act)
shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture and an Officers' Certificate stating that all conditions precedent to
the execution of supplemental indenture have been fulfilled. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company and
the Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee, the Company and the Guarantor, to any
such supplemental indenture may be prepared and executed by the Company, the
Guarantees of the Guarantor may be endorsed thereon and such securities
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
75
Section 906. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Any Premium, Interest and Additional
----------------------------------------------------------
Amounts.
-------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of, any premium
and interest on and any Additional Amounts with respect to the Securities of
each series in accordance with the terms thereof, any Coupons appertaining
thereto and this Indenture. Any interest due on any Bearer Security on or before
the Maturity thereof, and any Additional Amounts payable with respect to such
interest, shall be payable only upon presentation and surrender of the Coupons
appertaining thereto for such interest as they severally mature.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company and the Guarantor shall maintain in each Place of Payment
for any series of Securities, an Office or Agency where Securities of such
series, and Guarantees with respect thereto (but not Bearer Securities, except
as otherwise provided below, unless such Place of Payment is located outside the
United States) may be presented or surrendered for payment, where Securities of
such series may be surrendered for registration of transfer or exchange, where
Registered Securities may be surrendered for conversion, where Bearer Securities
may be surrendered for conversion in the circumstances described below (and not
otherwise) and where notices and demands to or upon the Company and the
Guarantor in respect of the Securities of such series relating thereto and this
Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company shall maintain, subject to any laws or regulations
applicable thereto, an Office or Agency in a Place of Payment and Place of
Conversion for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto, and Guarantees
with respect thereto, may be presented and surrendered for payment or
conversion; provided, however, that if the Securities of such series are listed
on the London Stock Exchange or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company shall maintain a Paying Agent and a Conversion Agent in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of such series are listed on such
exchange. The Company and the Guarantor will 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 or the Guarantor shall fail to maintain any
such required Office or Agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, except that
76
Bearer Securities of such series and any Coupons appertaining thereto, and
Guarantees with respect thereto, may be presented and surrendered for payment or
conversion at the place specified for that purpose with respect to such
Securities as provided in or pursuant to this Indenture, and the Company and the
Guarantor hereby appoint the Trustee as their agent to receive all such
presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities (including payments by reason of the conversion thereof) shall
be made at any Office or Agency in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a bank
located in the United States; provided, however, that if amounts owing with
-------- -------
respect to any Bearer Securities shall be payable in Dollars, payment of
principal of, any premium or interest on and any Additional Amounts with respect
to any such Security, or Guarantees with respect thereto, may be made, and any
Bearer Securities may be surrendered for conversion, at the Corporate Trust
Office of the Trustee or any Office or Agency designated by the Company in the
Borough of Manhattan, The City of New York, if (but only if) payment of the full
amount of such principal, premium, interest or Additional Amounts, or surrender
of Bearer Securities for conversion, at all offices outside the United States
maintained for such purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions on the full payment or receipt of such amounts in Dollars as
determined by the Company, or on surrender of any Bearer Securities for
conversion.
The Company and the Guarantor may also from time to time designate one
or more other Offices or Agencies where the Securities of one or more series,
and Guarantees endorsed thereon, 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 or the Guarantor of its obligation to maintain an Office or Agency in
each Place of Payment and Place of Conversion for Securities of any series for
such purposes. The Company and the Guarantor 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. Unless otherwise provided in or
pursuant to this Indenture, the Company and the Guarantor hereby designate as
the Place of Payment and the Place of Conversion for each series of Securities
(other than those issued as Bearer Securities) and the Guarantees endorsed
thereon, the Borough of Manhattan, The City of New York, and initially appoint
the Corporate Trust Office of the Trustee as the Company's and the Guarantor's
Office or Agency in the Borough of Manhattan, The City of New York for such
purpose. The Company and the Guarantor may subsequently appoint a different
Office or Agency in the Borough of Manhattan, The City of New York for the
Securities of any series, and the Guarantees endorsed thereon. Unless otherwise
provided in or pursuant to this Indenture, the Company and the Guarantor hereby
designate as the Place of Payment and the Place of Conversion for Bearer
Securities and the Guarantees endorsed thereon, to be London, England, and
initially appoint the office of the Trustee in London as the Office or Agency
for such purpose and initially appoint the office of the Trustee in London as
its Paying Agent in London.
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,
presentations and surrenders may be
77
made and notices and demands may be served on the Corporate Trust Office of the
Trustee, except that Bearer Securities and Coupons may be presented and
surrendered for payment and conversion to the Paying Agent in London at its
office in the City of London, England or other Paying Agent or Conversion Agent
outside the United States, and the Company hereby appoints the Paying Agent in
London as its agent to receive such respective presentations, surrenders,
notices and demands.
Section 1003. Money for Securities Payments to be Held in Trust.
-------------------------------------------------
If the Company or the Guarantor, as the case may be, shall at any time
act as its own Paying Agent with respect to any series of Securities, it shall,
on or before each due date of the principal of, any premium or interest on or
Additional Amounts with respect to any of the Securities of such series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in Dollars sufficient to pay the principal or any premium, interest or
Additional Amounts so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and shall promptly notify the
Trustee of its action or failure so to act.
Whenever the Company or the Guarantor, as the case may be, shall have
one or more Paying Agents for any series of Securities, it shall, on or prior to
each due date of the principal of, any premium or interest on or any Additional
Amounts with respect to any Securities of such series, deposit with any Paying
Agent a sum in Dollars sufficient to pay the principal or any premium, interest
or Additional Amounts so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto, and (unless such Paying Agent is the
Trustee) the Company or the Guarantor, as the case may be, will promptly notify
the Trustee of its action or failure so to act.
The Company or the Guarantor, as the case may be, shall 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
shall:
(1) hold all sums held by it for the payment of the principal
of, any premium or interest on or any Additional Amounts with respect
to Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company or
the Guarantor (or any other obligor upon the Securities of such series)
in the making of any payment of the principal of, any premium or
interest on or any Additional Amounts with respect to the Securities of
such series;
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
78
(4) indemnify the Trustee for any loss, cost, liability, or
expense caused by any error, act or omission of the Paying Agent.
The Company or the Guarantor, as the case may be, 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 of the Company or the Guarantor
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company, the Guarantor or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company, the
Guarantor 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 sums.
Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Company or
the Guarantor, as the case may be, in trust for the payment of the principal of,
any premium or interest on or any Additional Amounts with respect to any
Security of any series or any Coupon appertaining thereto and remaining
unclaimed for two years after such principal or any such premium or interest or
any such Additional Amounts shall have become due and payable shall be paid to
the Company or the Guarantor, as the case may be, on Company Request, or (if
then held by the Company or the Guarantor) shall be discharged from such trust;
and the Holder of such Security or any Coupon appertaining thereto, or
Guarantees endorsed thereon, shall thereafter, as an unsecured general creditor,
look only to the Company or the Guarantor (pursuant to the Guarantee) 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 or the Guarantor
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 an Authorized
Newspaper in each Place of Payment for such series or to be mailed to Holders of
Registered Securities of such series, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication or mailing, any unclaimed balance of
such money then remaining will be repaid to the Company or the Guarantor, as the
case may be.
Section 1004. Additional Amounts.
------------------
All payments of principal of, premium, if any, and interest on
Securities of any series to a Holder thereof who is not a United States person,
and all payments on the Guarantees to a Holder thereof who is not a United
States person shall be made without set-off, counterclaim, fees, liabilities or
similar deductions (including payments on redemption, repayment and the exercise
of either the Cash Settlement Option or the Stock Settlement Option), and free
and clear of, and without deduction or withholding for, taxes, levies, imposts,
duties, assessments, charges or fees of whatsoever nature now or hereafter
imposed, levied, collected, deducted, withheld or assessed by or on behalf of
the Government of the United States, or any state or other political subdivision
or taxing authority thereof or therein ("Taxes"). If the Company, the Guarantor,
-----
or any agent of either is required by law or regulation to make any deduction or
withholding for or on account of Taxes, the Company or Guarantor, as the case
may be, shall pay such additional amounts ("Additional Amounts") as shall be
------------------
necessary in order that the net amounts received by the Holders of the
Securities of any series who are not United States persons after such deduction
or
79
withholding shall equal the amount that would have been receivable thereunder
in the absence of such deduction or withholding, except that no such Additional
Amounts shall be payable on account of:
(a) any Tax which would not have been so imposed but for (i)
the existence of any present or former connection between such Holder (or
between a fiduciary, settlor, beneficiary, member, shareholder of or
possessor of a power over such Holder, if such Holder is an estate, a
trust, a partnership or a corporation) and the United States or any
political subdivision or taxing authority thereof or therein, including,
without limitation, such Holder (or such fiduciary, settlor, beneficiary,
member, shareholder or possessor) being or having been a citizen or
resident of the United States or treated as a resident thereof, or being or
having been engaged in trade or business or present therein, or having had
a permanent establishment therein, (ii) such Holder's present or former
status as a personal holding company, a foreign personal holding company
with respect to the United States, a controlled foreign corporation, a
passive foreign investment company, or a foreign private foundation or
foreign tax exempt entity for United States tax purposes, or a corporation
which accumulates earnings to avoid United States Federal income tax, or
(iii) such holder's status as a bank extending credit pursuant to a loan
agreement entered into in the ordinary course of business;
(b) any Tax which would not have been so imposed but for the
presentation by the Holder of such Security or any Coupon appertaining
thereto for payment on a date more than 15 days after the date on which
such payment became due and payable or the date on which payment thereof is
duly provided for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer,
personal property or similar Tax;
(d) any Tax which would not have been imposed but for the
failure to comply with any certification, identification or other reporting
requirements concerning the nationality, residence, identity or connection
with the United States of the Holder or beneficial owner of such Security
or any Coupon appertaining thereto, if compliance is required by statute or
by regulation or ruling of the United States Treasury Department as a
precondition to exemption from such Tax;
(e) any Tax which is payable otherwise than by deduction
or withholding from payments of principal of, premium, if any, or interest
on such Security;
(f) any Tax imposed as a result of a Person's past or present
actual or constructive ownership, including by virtue of the right to
convert Securities, of 10% or more of the total combined voting power of
all classes of stock of the Company entitled to vote;
(g) any Tax required to be withheld by any Paying Agent from
any payment of the principal of, premium, if any, or interest on such
Security, if such payment can be made without such withholding by any other
Paying Agent in Western Europe;
80
(h) any Tax imposed on the disposition of any Security by a
person holding at any time, actually or constructively, Securities of the
applicable series having a fair market value in excess of the greater of
the fair market value of five percent of (i) the Company's Common Stock or
(ii) the Securities of such series;
(i) any Tax imposed on a Holder that is a partnership or a
fiduciary, but only to the extent that any beneficial owner or member of
the partnership or beneficiary or settlor with respect to the fiduciary
would not have been entitled to the payment of Additional Amounts had the
beneficial owner, member, beneficiary or settlor directly received its
beneficial or distributive share of payments on such Security;
(j) any Tax which would not have been imposed but for the fact
that such Security constitutes a "United States real property interest," as
defined in Section 897(c)(1) of the Internal Revenue Code and the
regulations thereunder, with respect to the beneficial owner of such
Security; or
(k) any combination of items (a), (b), (c), (d), (e), (f),
(g), (h), (i) and (j).
Notwithstanding the foregoing, if and so long as a
certification, identification or other information reporting requirement
referred to in the third paragraph of Section 1102 of this Indenture would be
fully satisfied by payment of a backup withholding tax or similar charge, the
Company may elect, by so stating in the Determination Notice (as hereinafter
defined), to have the provisions of this paragraph apply in lieu of redeeming
the Security pursuant to such Section 1102. In such event, the Company will pay
as Additional Amounts such amounts as may be necessary so that every net payment
made, following the effective date of such requirements, outside the United
States by the Company or any Paying Agent of principal and premium, if any, due
in respect of a Security, or interest represented by any Coupon, the beneficial
owner of which is not a United States person (but without any requirement that
the nationality, residence or identity of such beneficial owner be disclosed to
the Company, any Paying Agent or any governmental authority), after deduction or
withholding for or on account of such backup withholding tax or similar charge,
other than a backup withholding tax or similar charge which is (a) the result of
a certification, identification or information reporting requirement described
in the first parenthetical clause of such third paragraph of Section 1102, (b)
imposed as a result of the fact that the Company or any Paying Agent has actual
knowledge that the beneficial owner of the Security or such Coupon is within the
category of Persons described in clause (a) of the preceding paragraph or (c)
imposed as a result of presentation of the Security or such Coupon for payment
more than 15 days after the date on which such payment becomes due and payable
or on which payment thereof is duly provided for, whichever occurs later, will
not be less than the amount provided for in the Security or such Coupon to be
then due and payable.
Except as specifically provided in this Indenture, the Company
shall not be required to make any payment with respect to any Taxes.
If the Company, the Guarantor or any successor to either of them under
this Indenture shall be incorporated under the laws of a jurisdiction other than
the United States, the Company or its successor will pay, and the Guarantor or
its successor will jointly and severally guarantee
81
the payment of, and the Company or the Guarantor shall provide notice to the
Trustee of the payment of, such additional amounts ("Other Additional Amounts")
------------------------
as may be necessary in order that every net payment on each Security, after
withholding for or on account of any present or future tax, assessment or other
governmental charge imposed upon or as a result of such payment by such other
jurisdiction (or any political subdivision or taxing authority thereof or
therein), will be not less than the amount provided for in such Security to be
then due and payable; provided, however, that (i) the Other Additional Amounts
-------- -------
payable to a Holder of a Security will be reduced to the extent that such
withholding reduces any tax liability to which such Holder of the Security was
and is subject both prior to and after such incorporation in another
jurisdiction and (ii) the exceptions listed in the second preceding paragraph
shall apply, substituting for the United States the relevant jurisdiction that
imposes the tax giving rise to the payment of Other Additional Amounts.
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of, any
Security of any series or any Coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided by the terms of this
Indenture or by the terms of such series established hereby or pursuant hereto
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms, and express mention of the
payment of Additional Amounts (if applicable) in any provision hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, if the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company shall
furnish to the Trustee and the principal Paying Agent or Paying Agents, if other
than the Trustee, an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and premium,
if any, or interest, if any, on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
not United States persons without withholding for or on account of any Tax
described in the Securities of such series. If any such withholding shall be
required, then such Officers' Certificate shall specify by country the amount,
if any, required to be withheld on such payments to such Holders of Securities
or Coupons, and the Company agrees to pay to the Trustee or such Paying Agent
the Additional Amounts required hereby or by the terms of such Securities. The
Company covenants to indemnify the Trustee and any Paying Agent and other
officers, directors, employees and agents for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
82
Section 1005. Statement as to Compliance.
--------------------------
Each of the Company and the Guarantor will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company and the Guarantor, as
the case may be, an Officers' Certificate, stating as to each signer, that
(1) a review of the activities of the Company or the Guarantor, as the
case may be, during such year and of performance under this Indenture has been
made under his or her supervision; and
(2) to the best of his or her knowledge, based on such review, (a) the
Company or the Guarantor, as the case may be, has fulfilled all its obligations
under this Indenture throughout such year, or, if there has been a material
default in the fulfillment of any such obligation, specifying each such default
known to him or her and the nature and status thereof, and (b) no event has
occurred and is continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him or her and the nature and
status thereof.
Section 1006. Corporate Existence.
-------------------
Subject to Article Eight, the Company and the Guarantor will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
------------------------
Redemption of Securities of any series at the option of the Company
as permitted or required in or pursuant to this Indenture or by the terms of
such Securities shall be made in accordance with the terms of this Indenture or
such Securities and (except as otherwise provided herein or pursuant hereto)
this Article Eleven.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company of the Securities of any series, the Company shall, at
least 75 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 and of the principal amount of Securities of such series to be
redeemed.
In addition, notwithstanding the above, if as a result of a Tax
Law Change, the Company has or will become obligated to pay to the Holder of any
Security or Coupon
83
Additional Amounts, and such obligation cannot be avoided by the Company taking
reasonable measures available to it, then the Company may, at its option, redeem
the Tax Affected Securities as a whole, but not in part, upon not less than 20
nor more than 60 days' notice to the Holders prior to the Redemption Date
therefor, at a Redemption Price equal to 100% of the principal amount plus
interest accrued to the Redemption Date, and any Additional Amounts then
payable; provided that (i) no such notice of redemption shall be given earlier
-------- ----
than 90 days prior to the earliest date on which the Company would be obligated
to pay any such Additional Amounts were a payment in respect of the Tax Affected
Securities then due and (ii) at the time such notice of redemption is given,
such obligation to pay such Additional Amounts remains in effect. Prior to the
publication of any notice of redemption pursuant to this paragraph, the Company
shall deliver to the Trustee (a) an Officers' Certificate stating that the
Company is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the right of the Company so to
redeem have occurred and (b) an Opinion of Counsel selected by the Company to
the effect that the Company has or will become obligated to pay such Additional
Amounts as a result of such Tax Law Change. The Company's right to redeem the
Tax Affected Securities shall continue as long as the Company is obligated to
pay such Additional Amounts, notwithstanding that the Company shall have made
payments of Additional Amounts specified in Section 1004.
In addition, if the Company determines, based upon an Opinion of
Counsel, that, as a result of a Tax Law Change, any payment made outside the
United States by the Company or any of its Paying Agents of the full amount of
principal, premium, if any, or interest due with respect to any Bearer Security
or Coupon appertaining thereto would be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which requirement is the disclosure to the Company, any Paying Agent
or any governmental authority of the nationality, residence or identity of a
beneficial owner of such Bearer Security or Coupon who is not a United States
person (other than such a requirement (a) which would not be applicable to a
payment made by the Company or any one of its Paying Agents (i) directly to the
beneficial owner or (ii) to any custodian, nominee or other agent of the
beneficial owner, (b) which can be satisfied by the custodian, nominee or other
agent certifying that such beneficial owner is not a United States person,
provided that, in each case referred to in clauses (a) (ii) and (b), payment by
-------- ----
such custodian, nominee or agent to such beneficial owner is not otherwise
subject to any such requirement, or (c) which would not be applicable but for
the fact that such Bearer Security constitutes a "United States real property
interest," as defined in Section 897(c)(1) of the Internal Revenue Code, with
respect to the beneficial owner of such Bearer Security), the Company at its
election will either (x) redeem the Bearer Securities, as a whole but not in
part, upon not less than 20 nor more than 60 days' notice prior to the
Redemption Date, at a Redemption Price equal to 100% of the principal amount
thereof plus interest accrued to the Redemption Date and any Additional Amounts,
or (y) if and so long as the certification, identification or other information
reporting requirement referred to above would be fully satisfied by payment of a
backup withholding tax or similar charge, pay the bearer the Additional Amounts
specified in Section 1004. The Company will make such determination and election
and notify the Trustee and the Paying Agent in London, England thereof in
writing as soon as practicable, and the Trustee will promptly give notice of
such determination in the manner provided in Section 106 (the "Determination
-------------
Notice"), in each case stating the effective date of such certification,
------
identification or information reporting requirement, whether the
84
Company will redeem the Bearer Securities or will pay the Additional Amounts
specified in the second paragraph of Section 1004 and (if applicable) the last
date by which the redemption of the Bearer Securities must take place. If the
Company elects to redeem the Bearer Securities pursuant to clause (x) above,
such redemption shall take place on a date, not later than one year after the
publication of the Determination Notice, as the Company elects by notice in
writing to the Trustee and the Paying Agent in London at least 75 days before
the Redemption Date, unless shorter notice is acceptable to the Trustee.
Notwithstanding the foregoing, the Company will not so redeem the Bearer
Securities if the Company, based upon an Opinion of Counsel which counsel shall
be reasonably acceptable to the Trustee, subsequently determines, not less than
20 days prior to the Redemption Date, that subsequent payments would not be
subject to any such requirement, in which case the Company will notify the
Trustee in writing of its determination not to so redeem the Securities, and the
Trustee will promptly give notice to the Holders of the Bearer Securities of
that determination and any earlier redemption notice will thereupon be revoked
and of no further effect. If the Company elects as provided in clause (y) above
to pay Additional Amounts, the Company may, as long as the Company is obligated
to pay such Additional Amounts, subsequently redeem the Bearer Securities, at
any time, as a whole but not in part, upon not less than 20 nor more than 60
days' notice prior to the Redemption Date, at a Redemption Price equal to 100%
of the principal amount thereof plus interest accrued to the Redemption Date,
and any Additional Amounts.
Section 1103. Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
If any Securities of any series are to be redeemed in part, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate, under circumstances intended not to
discriminate between Registered and Bearer Securities to be redeemed, and which
may provide for the selection for redemption of portions of the principal amount
of Registered Securities of such series; provided, however, that no such partial
-------- -------
redemption shall reduce the portion of the principal amount of a Registered
Security of such series not redeemed to less than the minimum denomination for a
Security of such series established herein or pursuant hereto. The Trustee shall
have no liability in connection with any selection of securities to redemption
made in good faith and without negligence.
If any Registered Security selected for partial redemption, which is
convertible by the terms of such Security established pursuant to Section 301,
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 may be treated by the Trustee as Outstanding for the purpose of such
selection.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
85
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 of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by the Trustee in the manner
provided in Section 106, not less than 20 nor more than 60 days prior to the
Redemption Date, unless a different period is specified in the Securities to be
redeemed. All such redemption notices (except, in the case of a redemption
specified in the penultimate paragraph of Section 1102) shall be irrevocable.
Failure to give notice by mailing in the manner herein provided to the Holder of
any Registered Securities designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity of
the proceedings for the redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall identify the Securities to be redeemed
and shall state:
(1) the Redemption Date,
(2) the Redemption Price, and accrued interest, if any,
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will receive,
without charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Security or portion thereof to be redeemed, and,
if applicable, that interest thereon shall cease to accrue on and after said
date,
(6) if applicable, the Conversion Price, the date on which the right
to convert the Securities to be redeemed will terminate and the places where
such Securities, together with all unmatured Coupons and any matured Coupons in
default appertaining thereto, may be surrendered for conversion,
(7) the place or places where such Securities, together (in the case
of Bearer Securities) with all Coupons appertaining thereto, if any, maturing
after the Redemption Date,
86
are to be surrendered for payment of the Redemption Price and any accrued
interest and Additional Amounts pertaining thereto,
(8) that the redemption is for a sinking fund, if such is the case,
(9) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all Coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing Coupon or Coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company, the
Trustee and any Paying Agent is furnished,
(10) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made, and
(11) the CUSIP number, ISIN number or the EUROCLEAR or the CEDEL
reference numbers of such Securities, if any (or any other numbers used by a
Depository to identify such Securities).
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
---------------------------
On or prior to 10:00 a.m., Eastern Time, on any Redemption Date, the
Company shall deposit, in immediately available funds, with respect to the
Securities of any series called for redemption pursuant to Section 1104, with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in Dollars sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date, unless otherwise
specified pursuant to Section 301 for or in the Securities of such series) any
accrued interest on and Additional Amounts with respect thereto, all such
Securities or portions thereof which are to be redeemed on that date.
If any Security called for redemption, which is convertible by the
terms of such Security established pursuant to Section 301, is converted, any
money deposited with the Trustee or with a Paying Agent or so segregated and
held in trust for the redemption of such Security shall (subject to any right of
the Holder of such Security or any predecessor Security to receive interest as
provided in Section 307) be paid to the Company on Company Request or, if then
held by the Company, shall be discharged from such trust.
87
Section 1106. 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 and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that, except
-------- -------
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section 1002),
and provided, further, that, except as otherwise specified in or pursuant to
-------- -------
this Indenture or the Registered Securities of such series, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
--------
however, that any interest or Additional Amounts represented by Coupons shall be
-------
payable only upon presentation and surrender of those Coupons at an Office or
Agency for such Security located outside of the United States except as
otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security and each Security shall remain convertible (if applicable) until
the principal of such Security (or portion thereof, as the case may be) shall
have been paid or duly provided for.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part shall be
surrendered at any applicable Office or Agency for such Security (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and
88
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing) and the Company shall execute, the Guarantees of the Guarantor shall
be endorsed on and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities of
the same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE TWELVE
CONVERSION OF SECURITIES
Section 1201. Conversion Privilege and Conversion Price.
-----------------------------------------
Conversion of Securities of any series at the option of the Holder
thereof as permitted by the terms of such Securities shall be made in accordance
with the terms of such Securities and (except as otherwise provided herein or
pursuant hereto) this Article Twelve. Each reference in this Article Twelve to
"a Security" or "the Securities" refers to the Securities of the particular
series that are convertible into shares of Common Stock. At the option of the
Holder any Security other than the temporary global Bearer Security may be
converted into fully paid and nonassessable shares (calculated as to each
conversion to the nearest 1/100th of a share) of Common Stock of the Company at
the Conversion Price (as defined below) in effect at the time of conversion. The
period for conversion shall be set forth in the terms of the Securities. In case
a Security or portion thereof is called for redemption or is delivered for
repayment, such conversion right in respect of the Security or portion so called
or delivered shall expire at the close of business on the fifth Business Day
preceding the Redemption Date or the second Business Day preceding a repayment
on the Securities Repayment Date (as set forth in Article Fifteen), as the case
may be, unless the Company defaults in making the payment due upon redemption or
repayment, as the case may be.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Price") shall be as set forth in the
----------------
terms of the Securities. The Conversion Price shall be adjusted in certain
instances as provided in this Article Twelve.
As permitted by the terms of such Securities, the Company may provide
for either or both of the options set forth in clauses (i) and (ii) of this
paragraph to apply to any series of Securities, in which case such provisions
shall be applicable to such Securities (except as otherwise provided herein or
pursuant hereto). In lieu of issuing shares of Common Stock upon conversion of
the Securities, the Company may elect, in its sole discretion to (i) pay cash in
respect of all or a portion of the shares of Common Stock otherwise issuable
upon such conversion (the "Cash Settlement Option") and/or (ii) to deliver fully
----------------------
paid and non-assessable shares of Guarantor Common Stock, in respect of all or a
portion of the shares of Common Stock otherwise issuable
89
upon such conversion (the "Stock Settlement Option"). The amount of cash to be
-----------------------
so delivered upon the exercise of the Cash Settlement Option shall be equal to
the number of shares of Common Stock as to which cash is being paid in lieu of
issuance of shares of Common Stock multiplied by the Market Price of a share of
----------
Common Stock.
In the event the Company exercises the Stock Settlement Option, the
number of shares of Guarantor Common Stock to be so delivered shall be equal to
the quotient obtained by dividing (a) the product of (i) the number of shares of
Common Stock (as to which the Stock Settlement Option is being exercised) into
which the Security is being converted multiplied by (ii) the Market Price of a
-------------
share of Common Stock by (b) the Market Price of a share of Guarantor Common
--
Stock, subject to appropriate adjustment in the event the Conversion Price is
adjusted as provided in Section 1204. Upon exercise of either the Cash
Settlement Option or the Stock Settlement Option, the Company shall inform each
Conversion Agent and Paying Agent of the Market Price of the Common Stock and,
if applicable, the Guarantor Common Stock.
Upon presentment for conversion of any Securities pursuant to this
Section 1201, the applicable Conversion Agent shall that day notify the Company
of such presentment. Within two Business Days after the Conversion Date, the
Company shall deliver to the Paying Agent written notice of whether such
Security shall be converted into shares of Common Stock, cash, Guarantor Common
Stock or a combination of shares of Common Stock, cash and Guarantor Common
Stock (specifying the amounts of each). The Company shall deliver to such Holder
no later than the fifth Business Day following the Conversion Date, through the
Paying Agent, in respect of the portion of the converted security to be settled
in cash, and as promptly as practicable on or following the Conversion Date in
respect of the portion of the converted Security as to which shares of Common
Stock and/or Guarantor Common Stock are to be issued, the amount of cash and
certificates representing the number of shares of Common Stock and/or Guarantor
Common Stock to be delivered, and cash in lieu of any fractional shares. No
payment or adjustment shall be made upon any conversion on account of any
dividends on the Common Stock issued upon conversion.
In the event that payment by the Company of cash in lieu of issuing
shares of Common Stock upon conversion of a Security shall require any
withholding for or on account of any present or future Tax imposed upon or as a
result of such cash payment by the United States or any political subdivision or
taxing authority thereof or therein, then the Company will be required to pay
Additional Amounts with respect thereto in the same manner and to the same
extent as is provided for in Section 1004.
In the event that payment by the Company of cash in lieu of issuing
shares of Common stock upon conversion of a Security shall require any
certification, identification or information reporting requirement of United
States law or regulation with regard to the nationality, residence or identity
of a beneficial owner of a Bearer Security who is not a United States person
(other than a requirement (a) which would not be applicable to a payment made
(i) directly to the beneficial owner or (ii) to a custodian, nominee or other
agent of the beneficial owner, or (b) which could be satisfied by the Holder,
custodian, nominee or other agent certifying that the beneficial owner is not a
United States person, provided, however, in each case referred to in clauses (a)
-------- -------
(ii) and (b) payment by such custodian, nominee or agent to the beneficial owner
is
90
not otherwise subject to any requirement referred to in this sentence), the
Company may not elect to make the cash payment unless such certification,
identification or information reporting requirement would be fully satisfied by
payment of United States withholding, backup withholding or similar taxes and
the Company pays such Additional Amounts as are necessary in order that,
following the effective date of such requirement, every net payment made outside
the United States by the Company or a related Paying Agent of the cash payment
on a Bearer Security to a Holder who is not a United States person (without
regard to a certification, identification or information reporting requirement
as to the nationality, residence or identity of such Holder), after deduction
for United States withholding, backup withholding or similar taxes (other than
withholding, backup withholding or similar taxes which would not be applicable
in the circumstances referred to in the parenthetical clauses above), will not
be less than the amount to be then due and payable thereon.
Section 1202. Exercise of Conversion Privilege.
--------------------------------
In order to exercise the conversion privilege, the Holder of any
Definitive Security to be converted shall surrender such Security, duly endorsed
or assigned to the Company or in blank (in the case of any Registered Security),
at any applicable Place of Conversion, accompanied by a duly signed and
completed conversion notice substantially in the form attached hereto as Exhibit
-------
C stating that the Holder elects to convert such Security or, if less than the
-
entire principal amount thereof is to be converted, the portion thereof to be
converted. Each Bearer Security surrendered for conversion must be surrendered
together with all Coupons appertaining thereto that mature after the Conversion
Date. If any Bearer Security surrendered for conversion shall not be accompanied
by all such appurtenant Coupons, the surrender of any or all of such missing
Coupons may be waived by the Company, the Guarantor and the Trustee, if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. Matured Coupons not in default (including
Coupons maturing on the Conversion Date) will be payable against surrender
thereof, and matured Coupons previously surrendered and in default will continue
to be payable, notwithstanding the exercise of the right of conversion by the
Holder of the Security to which the Coupon appertains. Accrued interest from the
immediately preceding Interest Payment Date until the Conversion Date (and
Additional Amounts, if any, thereon) will be paid, through the Paying Agent, in
the same manner as regular payments of interest and as provided in Section 307,
within five Business Days after the Conversion Date. The Company's delivery to
the Holder of the fixed number of shares of Common Stock (or cash or Guarantor
Common Stock in lieu thereof, as provided in this Indenture) into which a
Definitive Security is convertible will be deemed to satisfy the Company's
obligation to pay the principal amount of the Security.
Definitive Securities shall be deemed to have been converted
immediately prior to the close of business on the day of surrender of such
Securities for conversion (accompanied by a duly signed and completed conversion
notice as contemplated above) in accordance with the foregoing provisions, and
at such time the rights of the Holders of such Securities as Holders shall
cease, and the Person or Persons entitled to receive the Common Stock issuable
upon conversion shall be treated for all purposes as the record holder or
holders of such Common Stock at such time; provided, however, that if the
-------- -------
Company exercises the Cash Settlement Option or the Stock Settlement Option,
then the Person or Persons who were to receive the
91
Common Stock upon conversion shall not be deemed to have ever been a record
holder of the Common Stock as to which the Cash Settlement Option or the Stock
Settlement Option has been exercised and provided, further, that in the event
-------- -------
the Company exercises the Stock Settlement Option, the Person or Persons who
elected to convert shall be treated as the record holder of Guarantor Common
Stock issuable to such Person or Persons on the date the Company exercises the
Stock Settlement Option. Subject to Section 1201, as promptly as practicable on
or after the Conversion Date, the Company shall issue and deliver to the
Trustee, for delivery to the Holder, a certificate or certificates for the
number of full shares of Common Stock issuable upon conversion, together with
payment in lieu of any fraction of a share, as provided in Section 1203.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in an aggregate principal amount equal to
the unconverted portion of the principal amount of such Security. A Security may
be converted in part, but only if the principal amount of such Security to be
converted is any integral multiple of U.S. $1,000 and the principal amount of
such security to remain Outstanding after such conversion is equal to U.S.
$1,000 or any integral multiple of $1,000 in excess thereof.
Section 1203. Fractions of Shares.
-------------------
No fractional shares of Common Stock shall be issued upon conversion of
any Definitive Security. If more than one Definitive Security shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Definitive Securities (or
specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock which would otherwise be issuable upon conversion of any Definitive
Security or Securities (or specified portions thereof), the Company shall
calculate and pay a cash adjustment in respect of such fraction (calculated to
the nearest 1/100th of a share) in an amount equal to the same fraction of the
current Closing Price Per Share (calculated in accordance with Section 1204 (6)
below) at the close of business on the Conversion Date. Such cash payments
shall, in the case of a conversion of Bearer Securities, be made to an address
outside of the United States.
Section 1204. Adjustment of Conversion Price.
------------------------------
The Conversion Price shall be subject to adjustment from time to time
as follows:
(1) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company in shares of Common
Stock, the Conversion Price in effect at the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced so that the same
shall equal the price determined by multiplying such Conversion Price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
and the denominator shall be the sum of such number of shares and the total
number of shares of Common Stock constituting such dividend or other
distribution, such reduction to become effective at the opening of business on
the day
92
following the date fixed for such determination. For the purposes of this
paragraph (1), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company.
(2) In case at any time the Company shall issue rights, options
or warrants to all holders of its Common Stock entitling them to subscribe for
or purchase shares of Common Stock at a price per share less than the then
current market price per share (determined as provided in paragraph (6) of this
Section) of the Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights, options or warrants, the
Conversion Price in effect at the opening of business on the day following the
date fixed for such determination shall be reduced so that the same shall equal
the price determined by multiplying such Conversion Price by a fraction of which
the numerator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of Common Stock which the aggregate of the offering price of the total
number of shares of Common Stock so offered for subscription or purchase would
purchase at such current market price and the denominator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective at the opening of
business on the day following the date fixed for such determination; provided,
--------
however, that if an adjustment to the Conversion Price is made and any or all of
-------
such rights, options and warrants are not exercised, then a corresponding
reversing adjustment of the Conversion Price shall be made, on an equitable
basis, to take account of such event. For the purposes of this paragraph (2),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Company will not issue any rights or warrants in respect of shares of
Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion Price
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and,
conversely, in case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the Conversion Price in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such reduction
or increase, as the case may be, to become effective at the opening of business
on the day following the day upon which such subdivision or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness,
shares of any class of capital stock, cash or assets (including securities, but
excluding any (i) rights, options or warrants referred to in paragraph (2) of
this Section, (ii) any dividend or distribution paid exclusively in cash out of
the retained earnings of the Company, (iii) any dividend or distribution
referred to in paragraph (1) of this Section and (iv) shares issued upon any
merger or consolidation to which Section 1211
93
applies), the Conversion Price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a fraction of which the
numerator shall be the current market price per share (determined as provided in
paragraph (6) of this Section) of the Common Stock on the date fixed for such
determination less the then fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive and described
in a Company Board Resolution filed with the Trustee) of the portion of the
assets, shares or evidences of indebtedness so distributed applicable to one
share of Common Stock and the denominator shall be such current market price per
share of the Common Stock, such adjustment to become effective at the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.
(5) The reclassification of Common Stock into securities
including other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 1211 applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of stockholders entitled
to receive such distribution" and "the date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective," within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs
(2) and (4) of this Section 1204, the current market price per share of Common
Stock on any date shall be calculated by the Company and be deemed to be the
average of the daily Closing Prices Per Share for the five consecutive Trading
Days selected by the Company commencing not more than 10 Trading Days before,
and ending not later than, the earlier of the day in question and the day before
the "ex date" with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "ex date," when used with
respect to any issuance or distribution, means the first date on which the
Common Stock trades regular way in the applicable securities market or on the
applicable securities exchange without the right to receive such issuance or
distribution.
(7) No adjustment in the Conversion Price shall be
required unless such adjustment (plus any adjustments not previously made by
reason of this paragraph (7)) would require an increase or decrease of at least
one percent in such Conversion Price; provided, however, that any adjustments
-------- -------
which by reason of this paragraph (7) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article shall be made to the nearest cent or to the
nearest one-thousandth of a share, as the case may be.
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(8) The Company may make such reductions in the
Conversion Price, for the remaining term of any series of Securities or any
shorter term, in addition to those required by paragraphs (1), (2), (3) and (4)
of this Section 1204, as it considers to be advisable in order to avoid or
diminish any income tax to any holders of shares of Common Stock resulting from
any dividend or distribution of stock or issuance of rights or warrants to
purchase or subscribe for stock or from any event treated as such for income tax
purposes.
Section 1205. Notice of Adjustments of Conversion Price.
-----------------------------------------
Whenever the Conversion Price is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Price
in accordance with Section 1204 and shall prepare a certificate signed by the
Treasurer of the Company setting forth the adjusted Conversion Price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall promptly be filed with the Trustee and with each Conversion
Agent; and
(2) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall forthwith be
required, and as soon as practicable after it is required, such notice shall be
provided by the Company to all Holders in accordance with Section 106.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate or the information and
calculations contained therein, except to exhibit the same to any Holder of
Securities desiring inspection thereof at its office during normal business
hours.
Section 1206. Notice of Certain Corporate Action.
----------------------------------
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than exclusively in cash out
of the retained earnings of the Company; or
(b) the Company shall authorize the granting to the holders
of its Common Stock of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other
rights (other than rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other
rights of a corporation, a majority of each class of common stock of
which is owned, directly or indirectly, by the Company or the
Guarantor); or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its outstanding
shares of Common Stock), or of any consolidation or merger to which the
Company is a party and for which approval of the
95
stockholders of the Company is required pursuant to applicable corporate
law, or of the sale or transfer of all or substantially all of the
assets of the Company(; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002, and shall
cause to be provided to all Holders in accordance with Section 106, at least 20
days (or 10 days in any case specified in clause (a) or (b) above) prior to the
applicable record, expiration or effective date hereinafter specified, a notice
stating (y) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, or (z) the date on which such reclassification, consolidation,
merger, share exchange, conveyance, transfer, sale, lease, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, share exchange,
conveyance, transfer, sale, lease, dissolution, liquidation or winding up. If at
the time the Trustee shall not be the Conversion Agent, a copy of such notice
and any notice referred to in the following paragraph shall also forthwith be
filed by the Company with the Trustee.
Section 1207. Company to Reserve Common Stock.
-------------------------------
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities of any series, the full number
of shares of Common Stock then issuable upon the conversion of all Outstanding
Securities of such series.
Section 1208. Taxes on Conversions.
--------------------
The Company will pay any and all stamp and similar taxes and duties
that may be payable in respect of the issue or delivery of shares of Common
Stock on conversion of Securities pursuant hereto. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
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Section 1209. Covenant as to Common Stock
---------------------------
The Company agrees that all shares of Common Stock which may be delivered
upon conversion of Securities, upon such delivery, will have been duly
authorized and validly issued and will be fully paid and nonassessable and,
except as provided in Section 1208, the Company will pay all stamp and similar
taxes, liens and charges with respect to the issue thereof.
Section 1210. Cancellation of Converted Securities
------------------------------------
All Securities delivered for conversion shall be delivered to the Trustee
or the Paying Agent or its agent to be canceled by or at the direction of the
Trustee, which shall dispose of the same as provided in Section 309.
Section 1211. Provision in Case of Consolidation, Merger or Sale of Assets.
------------------------------------------------------------
In case of any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the Company
(other than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company)
or any sale or transfer of all or substantially all of the assets of the
Company, the Person formed by such consolidation or resulting from such merger
or which acquires such assets, as the case may be, shall execute and deliver to
the Trustee a supplemental indenture providing that the Holder of each Security
then Outstanding shall have the right thereafter, during the period such
Security shall be convertible as specified in Section 1201, to convert such
Security only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock of the Company into which such Security might
have been converted immediately prior to such consolidation, merger, sale or
transfer. Such supplemental indenture shall provide for adjustments which, for
events subsequent to the effective date of such supplemental indenture, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article Twelve. If in the case of any such consolidation, merger, sale or
transfer, the stock or other securities and property receivable by a Holder of
the Securities includes stock or other securities and property of a corporation
other than the successor or purchasing corporation, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the Holders of the
Securities as the Board of Directors of the Company shall reasonably consider
necessary. The above provisions of this Section 1211 shall similarly apply to
successive consolidations, mergers, sales or transfers. Notice of the execution
of such a supplemental indenture shall be given by the Company to the Holder of
each Security as provided in Section 106 promptly upon such execution.
Section 1212. Compliance with Governmental Requirements. The Company covenants
-----------------------------------------
that if any shares of Common Stock required to be reserved for purposes of
conversion of Securities hereunder require registration or listing with or
approval of any governmental authority under any Federal or State law, pursuant
to the Securities Act or the Exchange Act , or any national or regional
securities exchange or other trading market on which the Common Stock is listed
at the time of delivery of any Common Stock, before such shares may be issued
upon conversion, the
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Company will use its best efforts to cause such shares to be duly registered,
listed or approved, as the case may be.
ARTICLE THIRTEEN
SINKING FUNDS
Section 1301. Applicability of Article.
------------------------
The provisions of this Article Thirteen shall be applicable to any
sinking fund for the retirement of Securities of a series, except as otherwise
permitted or required in or pursuant to this Indenture or any Security of such
series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1302. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
Section 1302. Satisfaction of Sinking Fund Payments With Securities.
-----------------------------------------------------
The Company or the Guarantor may, in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of any series to be made
pursuant to the terms of such Securities (1) deliver Outstanding Securities of
such series (other than any of such Securities previously called for redemption
or any of such Securities in respect of which cash shall have been released to
the Company), together in the case of any Bearer Securities of such series with
all unmatured Coupons appertaining thereto, and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
-------- ----
Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
1302, the principal amount of Securities of such series to be redeemed in order
to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment, provided, however, that
-------- -------
the Trustee or such Paying Agent shall at the request of the
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Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
Section 1303. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, 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 of
Securities of that series pursuant to Section 1302, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not more than 75 days or less than 45 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 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 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE FOURTEEN
GUARANTEES
Section 1401. Guarantees.
----------
Except as otherwise contemplated by Section 1403 below and subject to
Article Eighteen, the Guarantor hereby unconditionally guarantees to each Holder
of a Security authenticated and delivered by the Trustee, and to the Trustee on
behalf of such Holder, the due and punctual payment of the principal of and any
premium and interest on and any Additional Amounts, if any, on such Security and
the due and punctual payment of any sinking fund or analogous payments provided
for pursuant to the terms of such Security, when and as the same shall become
due and payable, whether at the Stated Maturity, by declaration of acceleration,
call for redemption, repayment at the option of the Holder or otherwise, in
accordance with the terms of such Security and of this Indenture, and whether or
not such payment is prohibited by the subordination provisions of Article
Seventeen and any and all other amounts owed by the Company to the Trustee under
the terms of this Indenture. In case of the failure of the Company punctually to
make any such payment, the Guarantor hereby agrees to cause such payment to be
made punctually when and as the same shall become due and payable, whether at
the Stated Maturity or by declaration of acceleration, call for redemption,
repayment at the option of the Holder or otherwise, and whether or not such
payment is prohibited by the subordination
99
provisions of Article Seventeen and as if such payment were made by the Company,
subject to Article Eighteen.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
such Security or this Indenture, the absence of any action to enforce the same,
any waiver or consent by the Holder of such Security or by the Trustee with
respect to any provisions thereof or of this Indenture, the obtaining of any
judgment against the Company or any action to enforce the same or any other
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. The Guarantor hereby waives the benefits of diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to such Security or the
indebtedness evidenced thereby or with respect to any sinking fund payment
required pursuant to the terms of such Security and all demands whatsoever, and
covenants that the Guarantees will not be discharged in respect of such Security
except by complete performance of the obligations contained in such Security and
in this guarantee. The Guarantor hereby agrees that, in the event of a default
in payment of principal (or premium, if any) or interest or Additional Amounts,
if any, on such Security, or a default in any sinking fund or analogous payment
referred to therein, legal proceedings may be instituted by the Trustee on
behalf of, or by, the Holder of such Security, on the terms and conditions set
forth in this Indenture, directly against the Guarantor to enforce the
Guarantees without first proceeding against the Company.
The Guarantor shall be subrogated to all rights of the Holders of the
Securities of a particular series against the Company in respect of any amounts
paid by the Guarantor on account of such Security pursuant to the provisions of
the Guarantees or this Indenture; provided, however, that the Guarantor shall
-------- -------
not be entitled to enforce or to receive any payments arising out of, or based
upon, such right of subrogation until the principal of (and premium, if any) and
interest and Additional Amounts, if any, on all Securities of such series issued
hereunder shall have been paid in full.
Section 1402. Execution and Delivery of Guarantees.
------------------------------------
The Guarantees to be endorsed on the Securities of each series shall
include the terms of the Guarantee set forth in Section 1401 (except that
references to premium and interest need be included only if any premium or
interest, respectively, is provided for in the terms of such series) and any
other terms that may be set forth in the form established pursuant to Section
202 with respect to such series. The Guarantor hereby agrees to execute the
Guarantees, in a form established pursuant to Section 202, to be endorsed on
each Security authenticated and delivered by the Trustee.
The Guarantees shall be executed on behalf of the Guarantor by its
Chairman of the Board, a Vice Chairman of the Board, its President or one of its
Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Guarantees may be manual or facsimile.
100
Guarantees bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Guarantor shall bind the
Guarantor, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Guarantees or
did not hold such offices at the date of such Guarantees.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor. The Guarantor hereby agrees that its
Guarantee set forth in Section 1401 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any Security.
Section 1403. Guarantees Optional.
-------------------
Notwithstanding anything to the contrary in this Indenture, if so
provided in the terms of any series of Securities, such series of Securities may
be issued without the Guarantees contemplated by this Article Fourteen. In such
case, any and all references to the "Guarantees" or the "Guarantor" (including
the provisions relating thereto) throughout this Indenture shall be inapplicable
to such series.
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1501. Applicability Of Article. Repayment of Securities of any
------------------------
series that are convertible into Common Stock pursuant to Article Twelve before
their Stated Maturity at the option of Holders thereof shall be made in
accordance with the terms of such Securities, if any, and (except as otherwise
specified by the terms of such series established pursuant to Section 301) in
accordance with this Article Fifteen.
Section 1502. Repayment Of Securities. Securities of any series subject
-----------------------
to repayment in whole or in part (which shall be in a principal amount hereof
which is U.S. $1,000 or an integral multiple thereof) at the option of the
Holders thereof on any Repayment Date (as defined below) will, unless otherwise
provided in the Company's Board Resolutions or Officers' Certificate
establishing such series, be repaid at a price equal to the principal amount
thereof, together with interest and Additional Amounts, if any (the "Repayment
---------
Price"), if a Repayment Event shall occur or have occurred. For purposes hereof
-----
a "Repayment Event" shall have occurred if the Common Stock (or other equity
---------------
securities into which such series of Securities is then convertible) is neither
listed for trading on a United States national securities exchange, the Nasdaq
National Market nor approved for trading on an established automated
over-the-counter trading market in the United States. The "Repayment Date" with
--------------
respect to any Repayment Event shall be the ninetieth (90th) day after the later
of the Exchange Date or the date a Repayment Event has occurred. The Company
covenants that at or prior to 10:00 a.m., Eastern Time, on the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in Dollars in which the Securities of such
series are payable sufficient to pay the principal (or, if so provided by the
terms of the Securities of any series, a percentage of
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the principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest and Additional Amounts, if any, on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
Section 1503. Notice of Repayment. Unless the Company shall have
-------------------
theretofore called for redemption all of the Outstanding Securities of such
series, on or before the 30th day after the later of the Exchange Date and the
occurrence of a Repayment Event, the Company or, at the request and expense of
the Company, the Trustee shall give notice to all Holders of Securities entitled
to repayment pursuant to terms of such Securities established in accordance with
Section 301, in the manner provided in Section 106 (the "Repayment Notice"),
----------------
that a Repayment Event has occurred and of the repayment right set forth herein
arising as a result thereof. If applicable, the Company shall also deliver a
copy of the Repayment Notice to the Trustee.
All notices of repayment shall identify the Securities eligible for
repayment and shall state:
(1) the Repayment Date,
(2) the date by which the repayment right must be exercised,
(3) the Repayment Price,
(4) the Conversion Price then in effect, the date on which the right to
convert the Securities to be repaid will terminate and the place or places where
such Securities, together (in the case of Bearer Securities) with all Coupons
appertaining thereto, if any, maturing after the Repayment Date, may be
surrendered for conversion,
(5) a description of the procedure which a Holder must follow to
exercise a repayment right and the place or places where such Securities,
together (in the case of Bearer Securities) with all Coupons appertaining
thereto, if any, maturing after the Repayment Date, are to be surrendered for
payment and accrued interest and Additional Amounts, if any, pertaining thereto,
and
(6) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for repayment must be accompanied by all
Coupons maturing subsequent to the Repayment Date or the amount of any such
missing Coupon or Coupons will be deducted from any amount due to such Holder,
unless security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished.
Section 1504. Exercise Of Option. Securities of any series subject to
------------------
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form substantially in the form of Exhibit F, on the reverse of such
---------
Securities. In order for any Security to be repaid at the option of the Holder,
the Trustee must receive at the Place of Payment therefor specified in the terms
of such Security (or at such other place or places of which the Company shall
from time to time notify the Holders of such Securities) not earlier than 60
days nor later than 30 days prior to the Repayment Date (1) the Security so
providing for such repayment together with the
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"Option to Elect Repayment" form on the reverse thereof duly completed by the
Holder (or by the Holder's attorney duly authorized in writing) or (2) a
telegram, facsimile transmission or a letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States setting
forth the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP number,
if any, or a description of the tenor and terms of the Security, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled
"Option to Elect Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date of such
telegram, facsimile transmission or letter; provided, however, that such
-------- -------
telegram, facsimile transmission or letter shall only be effective if such
Security and form duly completed are received by the Trustee by such fifth
Business Day. If less than the entire principal amount of such Security is to be
repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
Section 1505. When Securities Presented For Repayment Become Due And
------------------------------------------------------
Payable. If Securities of any series providing for repayment at the option of
-------
the Holders thereof shall have been surrendered as provided in this Article
Fifteen and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the Coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all Coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest and Additional Amounts, if any, to the
Repayment Date; provided, however, that Coupons whose Stated Maturity is on or
-------- -------
prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon presentation and
surrender of such Coupons; and provided, further, that, in the case of
Registered Securities, installments of interest and Additional Amounts, if any,
whose Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Company shall default in the payment
thereof) 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 307.
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If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant Coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1502 an amount equal to the face amount of all such missing Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing Coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by Coupons
-------- -------
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
Coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or yield to
maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
Section 1506. Securities Repaid In Part. Upon surrender of any
-------------------------
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1601. Purposes for Which Meetings May Be Called.
-----------------------------------------
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article Sixteen to make, give or
take any request, demand, authorization, direction, notice, consent, waiver or
other Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1602. Call, Notice and Place of Meetings.
----------------------------------
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1601, to be
held at such time and at such place in the Borough of Manhattan, The City
of New York, or, if Securities of such series have been issued in whole
or in part as Bearer Securities, in London or in such place outside the
United States as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place
of such meeting and in
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general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any
purpose specified in Section 1601, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed notice of or made the first publication of
the notice of such meeting within 21 days after receipt of such request
(whichever shall be required pursuant to Section 106) or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and
the place in the Borough of Manhattan, The City of New York, or, if
Securities of such series are to be issued as Bearer Securities, in
London for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in clause (1) of this Section.
Section 1603. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 1604. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
-------- -------
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66-2/3% in principal amount of the Outstanding Securities of such series
constitute a quorum. In the absence of a quorum within 30 minutes after the time
appointed for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1602(1), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as
105
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
-------- -------
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of at least 66-2/3% in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of 66-2/3% in principal amount of
the Outstanding Securities of that series; and provided, further, that, except
as limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1605. Determination of Voting Rights; Conduct and Adjournment of
----------------------------------------------------------
Meetings.
--------
(1) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities of such series in regard to
proof of the holding of Securities of such series and of the appointment
of proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized
by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company, the Guarantor or by Holders of Securities as
provided in Section 1602(2), in which case the Company, the Guarantor or
the Holders of Securities of the series calling the meeting, as
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the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting.
(3) At any meeting, each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount
of Securities of such series held or represented by him; provided,
--------
however, that no vote shall be cast or counted at any meeting in respect
-------
of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security of such series or
proxy.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1602 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without
further notice.
Section 1606. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1602 and, if
applicable, Section 1604. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, another to the Guarantor, and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE SEVENTEEN
SUBORDINATION OF SECURITIES
Section 1701. Securities Subordinate to Senior Indebtedness.
---------------------------------------------
107
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article Seventeen, the indebtedness
represented by the Securities and the payment of the principal of, premium, if
any, and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
Section 1702. Payment Over of Proceeds Upon Dissolution, Etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or its creditors, as
such, or to its assets, or (b) any liquidation, dissolution or other winding up
of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in money or
money's worth, before the Holders of the Securities are entitled to receive any
payment on account of principal of, premium, if any, or interest on the
Securities and to that end the holders of Senior Indebtedness shall be entitled
to receive, for application to the payment thereof, any payment or distribution
of any kind or character, whether in cash, property or securities, which may be
payable or deliverable in respect of the Securities in any such case,
proceeding, dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section 1702, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, before all Senior Indebtedness is paid
in full or payment thereof provided for, and if such fact shall, at or prior to
the time of such payment or distribution, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holder of Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article Seventeen.
The issuance and delivery of junior securities upon conversion of
Securities in accordance with Article Twelve shall not be deemed to constitute a
payment or distribution on account of the principal of or premium or interest on
Securities or on account of the purchase or
108
other acquisition of securities. For the purposes of this Section, the term
"junior securities" means Common Stock and any other cash, property or
-----------------
securities into which the Securities are convertible pursuant to Article Twelve.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its creditors
other than holders of Senior Indebtedness and the Holders of the Securities, the
right, which is absolute and unconditional, of the Holder of any Security to
convert such Security in accordance with Article Twelve.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its properties and assets
to another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a dissolution, winding up, liquidation, reorganization, assignment
for the benefit of creditors or marshaling of assets and liabilities of the
Company for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or which acquires by
conveyance or transfer all or substantially all of such properties and assets,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article Eight.
Section 1703. No Payment When Senior Indebtedness in Default
----------------------------------------------
Upon the maturity of any Senior Indebtedness of the Company by lapse of
time, acceleration or otherwise, all principal thereof (and premium, if any) and
interest due thereon, including interest thereon accruing after the commencement
of any proceeding of the type referred to in Section 1702 above, and all other
amounts due on or with respect thereto, shall first be paid in full, or such
payment duly provided for in cash, before any payment, directly or indirectly,
is made by the Company on account of the principal of, premium, if any, or
interest and Additional Amounts on the Securities or Coupons. Upon the happening
of an event of default with respect to any Senior Indebtedness of the Company,
as defined therein or in the instrument under which it is outstanding permitting
the holders to accelerate the maturity thereof, then, unless and until such
event of default shall have been cured or waived or shall have ceased to exist,
no payment shall be made by the Company, directly or indirectly, on account of
the principal of, premium, if any, or interest and Additional Amounts on the
Securities or Coupons; provided, however, that nothing in this Section shall
-------- -------
prevent the satisfaction of any sinking fund payment in accordance with Article
Thirteen by delivering and crediting pursuant to Section 1302 Securities which
have been acquired (upon redemption or otherwise) prior to such default in
payment or other default.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section 1703 shall not apply to any payment with
respect to which Section 1702 would be applicable.
109
Section 1704. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article Seventeen or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company referred to in Section 1702 or under the
conditions described in Section 1703, from making payments at any time of
principal of, premium, if any, or interest on the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of, premium, if any, or interest on
the Securities or the retention of such payment by the Holders if, at the time
of such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article Seventeen.
Section 1705. Subrogation to Rights of Holders of Senior Indebtedness.
-------------------------------------------------------
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article Seventeen to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of,
premium, if any, and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article Seventeen, and no payments over pursuant to the provisions of this
Article Seventeen to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, be deemed to
be a payment or distribution by the Company to or on account of the Senior
Indebtedness.
Section 1706. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article Seventeen are and are intended solely
for the purpose of defining the relative rights of the Holders of the Securities
on the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article Seventeen or elsewhere in this Indenture or in
the Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional
(and which, subject to the rights under this Article Seventeen of the holders of
Senior Indebtedness, is intended to rank equally with all other general
unsecured obligations of the Company), to pay to the Holders of the Securities
the principal of, premium, if any, and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the Securities
and creditors of the Company other than the holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Seventeen of the
holders of Senior Indebtedness to
110
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
Section 1707. Trustee to Effectuate Subordination.
-----------------------------------
Each holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Seventeen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1708. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Seventeen or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 1709. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article Seventeen or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Securities,
unless and until the Trustee shall have received written notice thereof from the
Company, the Guarantor or a Senior Lender or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have received
-------- -------
the notice provided for in this Section at least three Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Security), then,
111
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled
to conclusively rely on the delivery to it of a written notice by a Person
representing himself to be a Senior Lender (or a trustee therefor) to establish
that such notice has been given by a Senior Lender (or a trustee therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as holders of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Seventeen, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Seventeen, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 1710. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Company referred to
in this Article Seventeen, the Trustee, subject to the provisions of Section
601, and the Holders of the Securities shall be entitled to conclusively rely
upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Seventeen.
Section 1711. Trustee Not Fiduciary for Holders of Senior Indebtedness.
--------------------------------------------------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other Person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
Seventeen or otherwise.
Section 1712. Rights of Trustee as Holder of Senior Indebtedness; Preservation
----------------------------------------------------------------
of Trustee's Rights.
-------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Seventeen with respect to any Senior
Indebtedness which may at any time be held by it,
112
to the same extent as any other holder of Senior Indebtedness, and nothing in
this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article Seventeen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 606.
Section 1713. 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 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 Seventeen in addition to or in place of the Trustee;
provided, however, that Section 1712 shall not apply to the Company or any
-------- -------
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
ARTICLE EIGHTEEN
SUBORDINATION OF GUARANTEES
Section 1801. Guarantees Subordinate to Senior Guarantor Indebtedness.
-------------------------------------------------------
The Guarantor covenants and agrees, and each Holder of a Security and
the related Guarantee, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article
Eighteen, the Guarantees in respect of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Guarantor Indebtedness.
Section 1802. Payment Over of Proceeds Upon Dissolution, Etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Guarantor or its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Guarantor, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or (c) any assignment for the benefit or
creditors or any other marshaling of assets and liabilities of the Guarantor,
then and in any such event the holders of Senior Guarantor Indebtedness shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Guarantor Indebtedness, or provision shall be made for
such payment in money or money's worth, before the Holders of the Guarantees are
entitled to receive any payment under the Guarantees on account of principal on,
premium, if any, or interest on the Securities and to that end the holders of
Senior Guarantor Indebtedness shall be entitled to receive, for application to
the payment thereof, any payment or distribution of any kind or character,
whether in cash, property or securities, which may be payable or deliverable in
respect of the Guarantees in any such case, proceeding, dissolution, liquidation
or other winding up or event.
113
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security in respect of the related
Guarantee shall have received any payment or distribution of assets of the
Guarantor of any kind or character, whether in cash, property or securities,
before all Senior Guarantor Indebtedness is paid in full or payment thereof
provided for, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Guarantor for application to the payment of all
Senior Guarantor Indebtedness remaining unpaid, to the extent necessary to pay
all Senior Guarantor Indebtedness in full, after giving effect to any concurrent
payment or distribution to or for the holder of Senior Guarantor Indebtedness.
For purposes of this Article Eighteen only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the Guarantor
as reorganized or readjusted, or securities of the Guarantor or any other
corporation provided for by a plan of reorganization or readjustment, which are
subordinated in right of payment to all Senior Guarantor Indebtedness which may
at the time be outstanding to substantially the same extent as, or to a greater
extent than, the Guarantees are so subordinated as provided in this Article
Eighteen. The consolidation of the Guarantor with, or the merger of the
Guarantor into, another Person or the liquidation or dissolution of the
Guarantor following the conveyance or transfer of all or substantially all of
its properties and assets to another Person upon the terms and conditions set
forth in Article Eight shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Guarantor for the purposes of this
Section if the Person formed by such consolidation or into which the Guarantor
is merged or which acquires by conveyance or transfer all or substantially all
of such properties and assets , as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article Eight.
Section 1803. No Payment When Senior Indebtedness in Default.
----------------------------------------------
Upon the maturity of any Senior Guarantor Indebtedness by lapse of
time, acceleration or otherwise, all principal thereof (and premium, if any) and
interest due thereon, including interest thereon accruing after the commencement
of any proceeding of the type referred to in Section 1802 above, and all other
amounts due on or with respect thereto, shall first be paid in full, or such
payment duly provided for in cash, before any payment, directly or indirectly,
is made by the Guarantor, directly or indirectly, in respect of the Guarantees
on account of the principal of, premium, if any, or interest and Additional
Amounts on the Securities or Coupons. Upon the happening of an event of default
with respect to any Senior Guarantor Indebtedness, as defined therein or in the
instrument under which it is outstanding permitting the holders to accelerate
the maturity thereof, then, unless and until such event of default shall have
been cured or waived or shall have ceased to exist, no payment shall be made by
the Guarantor, directly or indirectly, in respect of the Guarantees on account
of the principal of, premium, if any, or interest and Additional Amounts on the
Securities or Coupons.
114
In the event that, notwithstanding the foregoing, the Guarantor shall
make any payment to the Trustee or with respect to the Guarantee of any Security
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known to the Trustee or,
as the case may be, the Holder of the Security to which such Guarantee relates,
then and in such event such payment shall be paid over and delivered forthwith
to the Guarantor.
Section 1804. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article Eighteen or elsewhere in this
Indenture or in any of the Securities or the Guarantees shall prevent (a) the
Guarantor, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of the Guarantor
referred to in Section 1802 or under the conditions described in Section 1803,
from making payments at any time on the Guarantees on account of principal of,
premium, if any, or interest on the Securities, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on the
Guarantees on account of the principal of, premium, if any, or interest on the
Securities or the retention of such payment by the Holders if, at the time of
such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article Eighteen.
Section 1805. Subrogation to Rights of Holders of Senior Guarantor
----------------------------------------------------
Indebtedness.
------------
Subject to the payment in full of all Senior Guarantor Indebtedness,
the Holders of the Securities which are entitled to the benefits of the
Guarantee shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Guarantor Indebtedness pursuant to the
provisions of this Article Eighteen to the rights of the holders of such Senior
Guarantor Indebtedness to receive payments and distributions of cash, property
and securities applicable to the Senior Guarantor Indebtedness until the
principal of, premium, if any, and interest on the Securities shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Guarantor Indebtedness of any cash, property or securities
to which the Holders of any Security entitled to the benefits of a Guarantee or
the Trustee would be entitled except for the provisions of this Article
Eighteen, and no payments over pursuant to the provisions of this Article
Eighteen to the holders of Senior Guarantor Indebtedness by Holders of any
Security entitled to the benefits of a Guarantee or the Trustee, shall, as among
the Guarantor, its creditors other than holders of Senior Guarantor Indebtedness
and the Holders of any Security entitled to the benefits of a Guarantee, be
deemed to be a payment or distribution by the Guarantor to or on account of the
Senior Guarantor Indebtedness.
Section 1806. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article Eighteen are and are intended solely for
the purpose of defining the relative rights of the Holders of any Security
entitled to the benefits of a Guarantee on the one hand and the holders of
Senior Guarantor Indebtedness on the other hand. Nothing contained in this
Article Eighteen or elsewhere in this Indenture or in the Guarantees or the
Securities is intended to or shall (a) impair, as among the Guarantor, its
creditors other than
115
holders of Senior Guarantor Indebtedness and the Holders of any Security
entitled to the benefits of a Guarantee, the obligation of the Guarantor, which
is absolute and unconditional (and which, subject to the rights under this
Article Eighteen of the holders of Senior Guarantor Indebtedness, is intended to
rank equally with all other general obligations of the Guarantor), to pay to the
Holders of any Security entitled to the benefits of a Guarantee on account of
the principal of, premium, if any, and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Guarantor of the Holders of any Security
entitled to the benefits of a Guarantee and creditors of the Guarantor other
than the holders of Senior Guarantor Indebtedness; or (c) prevent the Trustee or
the Holder of any Security entitled to the benefits of a Guarantee from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article Eighteen of
the holders of Senior Guarantor Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
Section 1807. Trustee to Effectuate Subordination.
-----------------------------------
Each holder of a Guarantee by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Eighteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1808. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Guarantor
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Guarantor or by any act or failure to act, in good faith, by any such
holder, or by any non-compliance by the Guarantor with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Guarantor Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of any
Security entitled to the benefits of a Guarantee, without incurring
responsibility to the Holders of any Security entitled to the benefits of a
Guarantee and without impairing or releasing the subordination provided in this
Article Eighteen or the obligations hereunder of the Holders of any Security
entitled to the benefits of a Guarantee to the holders of Senior Guarantor
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Guarantor Indebtedness, or otherwise amend or supplement in any manner Senior
Guarantor Indebtedness or any instrument evidencing the same or any agreement
under which Senior Guarantor Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Guarantor Indebtedness; (iii) release any Person liable in any
manner for the collection of Senior Guarantor Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Guarantor and any other Person.
116
Section 1809. Notice to Trustee.
-----------------
The Guarantor shall give prompt written notice to the Trustee of any
fact known to the Guarantor which would prohibit the making of any payment to or
by the Trustee in respect of the Guarantees. Notwithstanding the provisions of
this Article Eighteen or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Guarantees, unless and until the Trustee shall have received written notice
thereof from the Guarantor, the Company or a holder of Senior Guarantor
Indebtedness or from any trustee therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 601, shall be
entitled in all respects to assume that no such facts exist; provided, however,
-------- -------
that if the Trustee shall not have received the notice provided for in this
Section at least three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment under the Guarantees on account of the principal of,
premium, if any, or interest on any Security), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which may
be received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled
to conclusively rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Guarantor Indebtedness (or a
trustee therefor) to establish that such notice has been given by a holder of
Senior Guarantor Indebtedness (or a trustee therefor). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Guarantor Indebtedness to
participate in any payment or distribution pursuant to this Article Eighteen,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Guarantor Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Eighteen, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section 1810. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Guarantor referred to
in this Article Eighteen, the Trustee, subject to the provisions of Section 601,
and the Holders of any Security entitled to the benefits of a Guarantee shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of any Security entitled to the benefits of a Guarantee, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Guarantor Indebtedness and other
indebtedness of the Guarantor, the amount thereof
117
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Eighteen.
Section 1811. Trustee Not Fiduciary for Holders of Senior Guarantor
-----------------------------------------------------
Indebtedness.
------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Guarantor Indebtedness and shall not be liable to any such
holders if it shall in good faith mistakenly pay over or distribute to Holders
of Guarantees or to the Guarantor or to any other Person cash, property or
securities to which any holders of Senior Guarantor Indebtedness shall be
entitled by virtue of this Article Eighteen or otherwise.
Section 1812. Rights of Trustee as Holder of Senior Guarantor Indebtedness;
-------------------------------------------------------------
Preservation of Trustee's Rights.
--------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Eighteen with respect to any Senior Guarantor
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Guarantor Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article Eighteen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 606.
Section 1813. 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 Eighteen 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 Eighteen in addition to or in place of the Trustee;
provided, however, that Section 1812 shall not apply to the Company or any
-------- -------
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
[Remainder of page intentionally left blank]
118
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
THERMO INSTRUMENT SYSTEMS INC.
By:
-------------------------------
Name:
Title:
(SEAL)
Attest:
----------------------
Secretary
THERMO ELECTRON CORPORATION
(SEAL) By:
-------------------------------
Name:
Title:
Attest:
----------------------
Secretary
BANKERS TRUST COMPANY, as
TRUSTEE
By:
-------------------------------
(SEAL) Name:
Title:
Attest:
-------------------------
119
STATE OF )
): SS.:
COUNTY OF )
On the _____ day of ________________, 1997, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is a _____________ of Thermo Instrument Systems Inc., a Delaware
corporation, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said Corporation; that the seal
affixed to said instrument is such Corporation's seal; that it was so affixed by
authority of the Board of Directors of said Corporation; and that he signed his
name thereto by like authority.
------------------------------------
Notary Public
[NOTARIAL SEAL]
120
STATE OF )
): SS.:
COUNTY OF )
On the _____ day of ________________, 1997, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is a _____________ of Thermo Electron Corporation, a Delaware
corporation, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said Corporation; that the seal
affixed to said instrument is such Corporation's seal; that it was so affixed by
authority of the Board of Directors of said Corporation; and that he signed his
name thereto by like authority.
------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF )
): SS.:
COUNTY OF )
On the ___ day of ________________, 1997, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is a _____________ of Bankers Trust Company, a New York banking
corporation, one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said Corporation; that the seal affixed to
said instrument is such Corporation's seal; that it was so affixed by authority
of the Board of Directors of said Corporation; and that he signed his name
thereto by like authority.
------------------------------------
Notary Public
[NOTARIAL SEAL]
121
EXHIBIT A
---------
GUARANTEE
For value received, Thermo Electron Corporation, a corporation
organized under the laws of the State of Delaware (herein called the
"Guarantor," which term includes any successor corporation under the Indenture
---------
referred to in the Security upon which this Guarantee is endorsed), hereby
unconditionally guarantees to the Holder of the Security upon which this
Guarantee is endorsed and to the Trustee on behalf of the Trustee and such
Holder the due and punctual payment of the principal of, premium, if any, and
interest and Additional Amounts, if any, on such Security, any other amount due
and payable pursuant to the terms of the Indenture and the due and punctual
payment of the sinking fund or analogous payments referred to therein if any,
when and as the same shall become due and payable, whether at the Stated
Maturity, by declaration of acceleration, call for redemption, repayment at the
option of the Holder or otherwise, according to the terms hereof and of the
Indenture. In case of the failure of Thermo Instrument Systems Inc., a
corporation organized under the laws of Delaware (herein called the "Company,"
-------
which term includes any successor corporation under such Indenture), punctually
to make any such payment of principal, premium, if any, or interest or
Additional Amounts, if any, the Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become due and payable,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption, repayment at the option of the Holder or otherwise, and as if such
payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
subordination, irregularity or unenforceability of such Security or such
Indenture, any failure to enforce the provisions of such Security or such
Indenture, or any waiver, modification or indulgence granted to the Company with
respect thereto, by the Holder of such Security or the Trustee or any other
circumstance which may otherwise constitute a legal or equitable discharge of a
surety or guarantor. The Guarantor hereby waives the benefits of diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such
Security or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged except by strict and
complete performance of the obligations contained in such Security and this
Guarantee. The Guarantor hereby agrees that, in the event of a default in
payment of principal of, premium, if any, and interest, and Additional Amounts,
if any, on such Security, or default in any sinking fund or analogous payment
referred to therein, legal proceedings may be instituted by the Trustee on
behalf of, or by, the Holder of such Security, on the terms and conditions set
forth in the Indenture, directly against the Guarantor to enforce this Guarantee
without first proceeding against the Company.
The Guarantor shall be subrogated to all rights of the Holder of such
Security and the Trustee against the Company in respect of any amounts paid to
such Holder by the Guarantor on account of such Security pursuant to the
provisions of this Guarantee or the Indenture; provided, however, that the
-------- -------
Guarantor shall not be entitled to enforce, or to receive any payments arising
A-1
out of or based upon, such right of subrogation until the principal of, premium,
if any, and interest and Additional Amounts, if any, on all Securities issued
under such Indenture shall have been paid in full.
Claims under the Guarantee are, to the extent provided in the
Indenture, subject in right of payment to the prior payment in full of all
Senior Guarantor Indebtedness, and this Guarantee is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of a Security upon
which this Guarantee is endorsed, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his, her or its
attorney-in-fact for any and all such purposes.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of the
Guarantor, which is absolute and unconditional, of the due and punctual payment
of principal, premium (if any), and interest and Additional Amounts, if any, on
the Security upon which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication of the Security upon which this Guarantee is
endorsed shall have been manually executed by or on behalf of the Trustee under
such Indenture.
All terms used in this Guarantee which are defined in such Indenture
shall have the meanings assigned to them in such Indenture.
This Guarantee shall be deemed to be a contract made under the laws of
the Commonwealth of Massachusetts, and for all purposes shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed under its corporate seal and dated the date on the face hereof.
THERMO ELECTRON CORPORATION
Attest: By:
---------------------------- --------------------------------
Title:
-----------------------------
A-2
EXHIBIT B
---------
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
NAME OF TRUSTEE,
as Trustee
*Dated:
By:
----------------------------------
Authorized Officer
------------------------------------
* For Registered Securities Only
B-1
EXHIBIT C
---------
CONVERSION NOTICE
(a) For Bearer Securities:
The undersigned Holder of this Security hereby irrevocably exercises
the option to convert this Security, or any portion of the principal amount
hereof (which is an integral multiple of U.S. $1,000 below designated) into
shares of Common Stock in accordance with the terms of the Indenture referred to
in this Security and directs that such shares, together with a check in payment
for any fractional share and any Securities representing any unconverted
principal amount hereof, be delivered to the undersigned unless a different name
has been indicated below. The address for payment of any such check must be
outside the United States. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto.
Dated:
--------------------- -----------------------------------
Signature
[MUST BE GUARANTEED IF STOCK IS TO BE ISSUED
IN A NAME OTHER THAN THE REGISTERED HOLDER
OF THE SECURITY]
If shares are to be registered HOLDER
in the name of and delivered to
a Person other than the Holder,
please print such Person's name
and address: Please print name and address of Holder
--------------------------------- -----------------------------------
Name Name
--------------------------------- -----------------------------------
Address Address
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
--------------------------------- -----------------------------------
Social Security or other Taxpayer Social Security or other Taxpayer
Identification Number, if any Identification Number, if any
C-1
Name and address (outside the If only a portion of the Securities is
United States) to where any check to be converted, please indicate:
referred to in the first paragraph
of this Conversion Notice should
be mailed: 1. Principal amount to be converted:
U.S. $
--------------------
------------------------------- 2. Principal amount and denomination of
Name Registered Securities representing
unconverted principal amount to be
issued:
-------------------------------
Address
Amount: U.S.$
----------------
Denominations:
U.S.$
----------
(any integral multiple of U.S. $1,000)
C-2
(b) For Registered Securities:
The undersigned Holder of this Security hereby irrevocably exercises
the option to convert this Security, or any portion of the principal amount
hereof (which is an integral multiple of U.S. $1,000 below designated) into
shares of Common Stock in accordance with the terms of the Indenture referred to
in this Security, and directs that such shares, together with a check in payment
for any fractional share and any Securities representing any unconverted
principal amount hereof, be delivered to and be registered in the name of the
undersigned unless a different name has been indicated below. If shares are to
be registered in the name of a Person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Dated:
---------------------- ----------------------
Signature
[MUST BE GUARANTEED IF STOCK
IS TO BE ISSUED IN A NAME OTHER
THAN THE REGISTERED HOLDER OF
THE SECURITY]
-----------------------------------
Name
-----------------------------------
Address
-----------------------------------
Social Security or other Taxpayer
Identification Number, if any
C-3
If shares or Registered Securities are If only a portion of the Securities
to be registered in the name of a is to be converted, please indicate:
Person other than the Holder, please
print such Person's name and address: 1. Principal amount to be
converted:
U.S. $
------------------
-------------------------- 2. Principal amount and
Name denomination of Registered Securities
representing uncoverted principal
-------------------------- amount to be issued.
Address
Amount: U.S.$
----------------------
--------------------------
Social security or other Taxpayer Denominations:
Identification Number, if any U.S.$
------------
(any integral multiple of U.S.
$1,000)
C-4
EXHIBIT D
---------
Form of Certificate of Beneficial Ownership for
Bearer Securities to be Provided to the
Euroclear Operator or to Cedel Bank, societe anonyme
CERTIFICATION
-------------
U.S. $__________
THERMO INSTRUMENT SYSTEMS INC.
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof and except as set forth
below, $__________ aggregate principal amount of the above-mentioned Securities
held by you for our account are owned or, if this certificate is being delivered
in connection with a payment of interest, were owned, by or on behalf of, (a) a
person (other than a financial institution for purposes of resale during the
restricted period) who is not a United States person; or (b) a United States
person (other than a financial institution for purposes of resale during the
restricted period) who is (i) a foreign branch of a United States financial
institution or (ii) a United States person acquiring such Securities through the
foreign branch of a United States financial institution and who for purposes of
this certification holds such Securities through such financial institution on
the date hereof, and, in the case of either (i) or (ii), such United States
financial institution has agreed, for the benefit of the Company, to comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as from time to time amended, and the regulations
thereunder; or (c) a financial institution for purposes of resale during the
restricted period and such financial institution has not acquired such
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions; and the
undersigned has obtained a similar certificate from its member organizations on
which this certificate is based; provided, however, that if the undersigned has
actual knowledge that the information contained in such a certificate is false
(and, absent documentary evidence that the beneficial owner of such Security is
not a United States person, it will be deemed to have actual knowledge that such
certificate is false if it has a United States address for such beneficial
owner, other than a financial institution described above), the undersigned will
not deliver a Security in temporary or definitive bearer form to the person who
signed such certificate notwithstanding the delivery of such certificate to the
undersigned.
D-1
No. of Certificates Amount
$1,000 Denomination ________________ = $________________
$10,000 Denomination ________________ = $________________
[Other Authorized
Denomination] ________________ = $________________
Total Requested ________________ = $________________*
As used herein, (i) "United States person" means a citizen or resident
of the United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States, an estate the income of
which is subject to United States Federal income taxation regardless of its
source, any trust if a court within the United States is able to exercise
primary supervision of the administration thereof and one or more United States
fiduciaries have the authority to control all substantial decisions thereof, and
any other person deemed a "United States person" or a "U.S. person" under the
Internal Revenue Code of 1986, as amended, (ii) "United States" means the United
States of America (including the States and the District of Columbia) and its
territories and possessions, including Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands, (iii)
"restricted period" means the period described in Section 1.163-5(c)(2)(i)(D)(7)
of the United States Treasury Regulations, and (iv) "financial institution"
means the persons described in Section 1. 165-12(c)(1)(v) of the United States
Treasury Regulations.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to U.S.$_______________
of such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of Definitive
Securities cannot be made until we do so certify.
---------------------
* Must equal the amount stated in the first paragraph of this certificate.
D-2
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interested party in such proceedings.
Dated: ___________________, ____**
[Name]
By:
-------------------------
Signature
As, or as agent for, the beneficial
owner[s] of the Securities to which
this certificate relates.
---------------------
** Not earlier than 15 days prior to the earlier of the date that definitive
Bearer Security is delivered and the Exchange Date.
D-3
EXHIBIT E
---------
Form of Certificate to be Given by
the Euroclear Operator and Cedel Bank, societe anonyme
CERTIFICATION
-------------
U.S. $
THERMO INSTRUMENT SYSTEMS INC.
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below or to interest payable on an interest
payment date (our "Member Organizations"), substantially to the effect set forth
in the Indenture relating to the above-captioned Securities, as of the date
hereof, U.S. $_______________ aggregate principal amount of the above-captioned
Securities is owned by persons that are not citizens or residents of the United
States, United States domestic partnerships, United States domestic
corporations, any estate the income of which is subject to United States Federal
income taxation regardless of its source, any trust if a court within the United
States is able to exercise primary supervision of the administration thereof and
one or more United States fiduciaries have the authority to control all
substantial decisions thereof, or any other person deemed a "United States
person" or a "U.S. person" under the Internal Revenue Code of 1986, as amended
and the regulations thereunder ("United States persons").
The following denominations of Bearer Securities are requested:
No. of Certificates Amount
$1,000 Denomination ________________ = $________________
$10,000 Denomination ________________ = $________________
[Other Authorized
Denomination] ________________ = $________________
Total Requested ________________ = $________________*
We further certify (i) that we are not making available herewith for
exchange any portion of the temporary global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organization with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date
---------------------
* Must equal the amount stated in the first paragraph of this certificate.
E-1
hereof. We further certify that interest payable on the interest payment dates
on _________ and _________ will be paid with respect to U.S. $_____________
principal amount of the Securities with respect to which we have received from
Member Organizations certificates substantially in the form set out in Exhibit D
to the Indenture relating to the Securities that the Securities (a) are owned by
a person (other than a financial institution for purposes of resale during the
restricted period) who is not a United States person; (b) are owned by a United
States person (other than a financial institution for purposes of resale during
the restricted period) who is (i) a foreign branch of a United States financial
institution or (ii) a United States person who acquired such Securities through
the foreign branch of a United States financial institution and who for purposes
of this certification holds such Securities through such financial institution
on the date hereof and, in either case, such United States financial institution
has agreed, for the benefit of the Company, to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as from time to time amended, and the regulations thereunder; or (c) are
owned by a financial institution for purposes of resale during the restricted
period and such financial institution has certified that it has not acquired
such Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
To the extent that we have knowledge that any of such certificates from
a Member Organization is false and to the extent that we have not received with
respect to any Securities such certificates from Member Organization, we are not
requesting that payment be made for interest with respect thereto.
We further certify that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organization with respect to any interest payment
on any portion of the principal amount of the Securities are no longer true and
cannot be relied upon as of the date hereof. We further certify that under the
rules of the undersigned organization, each Member Organization has agreed that
any electronic certification shall have the effect of a signed certification and
that all certifications shall be retained for at least four calendar years
following the year in which the certifications are received in compliance with
the rules set forth under Treas. Reg. 1.163-5(c)(2)(i)(D)(3)(i).
We undertake that any interest received by us and not paid as provided
above shall be returned to the Trustee for the above-captioned Securities
immediately prior to the expiration of two years after such interest payment
date in order to be repaid by such Trustee to the above issuer at the end of two
years after such interest payment date.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
E-2
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its territories and
possessions, including Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands. As used herein, "restricted
period" means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the
United States Treasury Regulations and "financial institution" means the persons
described in Section 1.165-12(c)(1)(v) of the United States Treasury
Regulations.
Dated: ___________________, ____**
Yours faithfully,
[XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, BRUSSELS OFFICE, AS OPERATOR OF
THE EUROCLEAR SYSTEM]
[CEDEL BANK, SOCIETE ANONYME]***
By:
-----------------------------
---------------------
** To be dated no earlier than the earlier of the date the definitive Bearer
Security is delivered and the Exchange Date.
*** Delete as appropriate.
E-3
EXHIBIT F
---------
OPTION TO ELECT REPAYMENT
UPON A REPAYMENT EVENT
To: Thermo Instrument Systems Inc.
The undersigned owner of this Security hereby acknowledges receipt of a
notice from Thermo Instrument Systems Inc. (the "Company") as to the occurrence
of a Repayment Event with respect to the Common Stock of the Company and
requests and instructs the Company to repay the entire principal amount of this
Security, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, in accordance with the terms of the Indenture
referred to in this Security at the Repayment Price (or the relevant percentage
thereof), together with accrued interest to such date (except if the Repayment
Date shall be an Interest Payment Date), to the holder hereof.
Dated:
------------------------
---------------------------------
Signature*(s)
Name:
---------------------------
Address:
-------------------------
-------------------------
[* Signature Guarantee Required]
Principal amount to be repaid
(if less than all):
$
----------
NOTICE: If this Security is
issued in registered form, the
above signatures of the
holder(s) hereof must
correspond with the name as it
appears in the Security in
every particular without
alteration or enlargement or
any change whatever.
---------------------
Social Security or Other
Taxpayer Identification Number
F-1
