Exhibit 4.2
▇▇▇▇▇▇.▇▇▇ INDIA LIMITED
AND
CITIBANK, N.A.,
as Trustee
SUBORDINATED INDENTURE
Dated as of ___________
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
Section 1.1 Certain Terms Defined..............................................................1
ARTICLE II SECURITIES
Section 2.1 Forms Generally....................................................................7
Section 2.2 Form of Trustee's Certificate of Authentication....................................7
Section 2.3 Amount Unlimited; Issuable in Series...............................................8
Section 2.4 Authentication and Delivery of Securities.........................................10
Section 2.5 Execution of Securities...........................................................13
Section 2.6 Certificate of Authentication.....................................................13
Section 2.7 Denomination and Date of Securities; Payments of Interest.........................13
Section 2.8 Registration, Transfer and Exchange...............................................14
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.........................18
Section 2.10 Cancellation of Securities; Destruction Thereof...................................19
Section 2.11 Temporary Securities..............................................................19
Section 2.12 CUSIP Numbers.....................................................................20
ARTICLE III COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal, Premium, Interest and Additional Amounts....................20
Section 3.2 Offices for Payments, Etc.........................................................20
Section 3.3 Money for Security Payments to be Held in Trust; Unclaimed Money..................21
Section 3.4 Statements of Officers of Issuer as to Default; Notice of Default.................22
Section 3.5 Existence.........................................................................23
Section 3.6 Maintenance of Properties.........................................................23
Section 3.7 Payment of Taxes and Other Claims.................................................23
Section 3.8 Further Instruments and Acts......................................................23
Section 3.9 Commission Reports................................................................23
Section 3.10 Calculation of Original Issue Discount............................................24
ARTICLE IV SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders...................................................................24
Section 4.2 Preservation of Information; Communications to Holders............................24
Section 4.3 Reports by the Trustee............................................................25
Section 4.4 Payment of Additional Amounts.....................................................25
Section 4.5 Redemption for Tax Purposes.......................................................26
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default.............27
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.....................30
Section 5.3 Application of Proceeds...........................................................32
Section 5.4 Suits for Enforcement.............................................................33
Section 5.5 Restoration of Rights on Abandonment of Proceedings...............................33
Section 5.6 Limitations on Suits by Securityholders...........................................33
Section 5.7 Unconditional Right of Securityholders to Institute Certain Suits.................33
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default...........34
Section 5.9 Control by Holders of Securities..................................................34
Section 5.10 Waiver of Past Defaults...........................................................34
Section 5.11 Trustee to Give Notice of Default, but May Withhold in Certain Circumstances......35
Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs......................35
ARTICLE VI CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default......36
Section 6.2 Certain Rights of the Trustee.....................................................37
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof...................................................39
Section 6.4 Trustee and Agents May Hold Securities or Coupons; Collections, Etc...............39
Section 6.5 Moneys Held by Trustee............................................................39
Section 6.6 Compensation and Indemnification of Trustee and its Prior Claim...................39
Section 6.7 Right of Trustee to Rely on Officer's Certificate, Etc............................40
Section 6.8 Indentures Not Creating Potential Conflicting Interests for the Trustee...........40
Section 6.9 Persons Eligible for Appointment as Trustee.......................................40
Section 6.10 Resignation and Removal; Appointment of Successor Trustee.........................41
Section 6.11 Acceptance of Appointment by Successor Trustee....................................42
Section 6.12 Merger, Amalgamation, Conversion, Consolidation or Succession to
Business of Trustee...............................................................43
Section 6.13 Preferential Collection of Claims Against the Issuer..............................44
Section 6.14 Appointment of Authenticating Agent...............................................44
ARTICLE VII CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders.......................................45
Section 7.2 Proof of Execution of Instruments and of Holding of Securities....................45
Section 7.3 Holders to Be Treated as Owners...................................................46
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding.................................46
Section 7.5 Right of Revocation of Action Taken...............................................47
ARTICLE VIII SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Securityholders........................47
Section 8.2 Supplemental Indentures With Consent of Securityholders...........................49
Section 8.3 Effect of Supplemental Indenture..................................................50
Section 8.4 Documents to Be Given to Trustee..................................................50
Section 8.5 Notation on Securities in Respect of Supplemental Indentures......................50
Section 8.6 Subordination Unimpaired..........................................................50
Section 8.7 Conformity with Trust Indenture Act of 1939.......................................51
ARTICLE IX CONSOLIDATION, MERGER, AMALGAMATION,
SALE OR CONVEYANCE
Section 9.1 Issuer May Consolidate, Etc., Only on Certain Terms...............................51
Section 9.2 Successor Substituted for the Issuer..............................................51
ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 10.1 Termination of Issuer's Obligations Under the Indenture...........................51
Section 10.2 Application of Trust Funds........................................................53
Section 10.3 Applicability of Defeasance Provisions; Issuer's Option to Effect
Defeasance or Covenant Defeasance.................................................53
Section 10.4 Defeasance and Discharge..........................................................53
Section 10.5 Covenant Defeasance...............................................................54
Section 10.6 Conditions to Defeasance or Covenant Defeasance...................................54
Section 10.7 Deposited Money and U.S. Government Obligations to be Held in Trust...............56
Section 10.8 Repayment to Issuer...............................................................56
Section 10.9 Indemnity For U.S. Government Obligations.........................................56
Section 10.10 Reimbursement.....................................................................56
ARTICLE XI MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Shareholders, Officers and Directors of Issuer
Exempt from Individual Liability..................................................56
Section 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons.............................................57
Section 11.3 Successors and Assigns of Issuer Bound by Indenture...............................57
Section 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities and Coupons......57
Section 11.5 Officer's Certificates and Opinions of Counsel; Statements to
Be Contained Therein..............................................................57
Section 11.6 Payments Due on Saturdays, Sundays and Holidays...................................58
Section 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939...........58
Section 11.8 New York Law to Govern; Waiver of Jury Trial......................................59
Section 11.9 Counterparts......................................................................59
Section 11.10 Effect of Headings................................................................59
Section 11.11 Securities in a Foreign Currency or in ECU........................................59
Section 11.12 Judgment Currency.................................................................60
Section 11.13 Separability Clause...............................................................60
Section 11.14 Force Majeure.....................................................................60
Section 11.15 Submission to Jurisdiction........................................................60
ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article..........................................................61
Section 12.2 Notice of Redemption; Partial Redemptions.........................................61
Section 12.3 Payment of Securities Called for Redemption.......................................63
Section 12.4 Exclusion of Certain Securities from Eligibility for Selection for
Redemption........................................................................64
Section 12.5 Mandatory and Optional Sinking Funds..............................................64
ARTICLE XIII SUBORDINATION
Section 13.1 Agreement to Subordinate..........................................................66
Section 13.2 Rights of Senior Indebtedness in the Event of Insolvency, Etc.,
of the Issuer.....................................................................66
Section 13.3 Payment Over of Proceeds Received on Securities...................................67
Section 13.4 Payments to Holders...............................................................68
Section 13.5 Holders of Securities Authorize Trustee to Effectuate Subordination
of Securities.....................................................................69
Section 13.6 Notice to Trustee.................................................................69
Section 13.7 Trustee May Hold Senior Indebtedness..............................................69
Section 13.8 Trustee Not Fiduciary for Holders of Senior Indebtedness..........................70
Section 13.9 Reliance on Judicial Order or Certificate of Liquidating Agent....................70
Section 13.10 Applicability of Article XIII to Paying Agents....................................70
THIS INDENTURE, dated as of [ ], between ▇▇▇▇▇▇.▇▇▇ INDIA
LIMITED, a limited liability company organized under the laws of the Republic
of India (the "Issuer"), and Citibank, N.A., a national banking association
organized under the laws of the United State of America, as trustee (the
"Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time
to time of its unsecured subordinated notes, debentures or other evidences of
its unsecured indebtedness to be issued in one or more series (the
"Securities") up to such principal amount or amounts as may from time to time
be authorized in accordance with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and legally binding agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities and of the Coupons, if any,
appertaining thereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise
clearly requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939 or the definitions of which in the Securities Act of
1933 are referred to in the Trust Indenture Act of 1939, including terms
defined therein by reference to the Securities Act of 1933 (except as herein
otherwise expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in said Trust Indenture Act of 1939
and in said Securities Act as in force at the date of this Indenture. All
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted accounting
principles, and the term "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means such
accounting principles as are generally accepted at the time of any
computation. The words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well
as the singular.
"ADDITIONAL AMOUNTS" shall mean any additional amounts which
are required hereby or by any Security, under circumstances specified herein
or therein, to be paid by the Issuer, in respect of certain taxes, assessments
or other governmental charges imposed on Holders specified therein and which
are owing to such Holders.
"AUTHENTICATING AGENT" shall have the meaning set forth in
Section 6.14.
"AUTHORIZED NEWSPAPER" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive publications
in an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"BOARD OF DIRECTORS" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act on its
behalf.
"BOARD RESOLUTION" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have
been duly adopted or consented to by the Board of Directors and to be in full
force and effect, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day
that in the city (or in any of the cities, if more than one) in which amounts
are payable, as specified in the form of such Security, and in [The City of
New York] is not a day on which banking institutions are authorized or
required by law, executive order or regulation to close.
"COMMISSION" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act of 1939, then the body performing such duties on
such date.
"CONSOLIDATED TOTAL ASSETS" means, in respect of the Issuer
as of any date of determination, the amount of total assets shown on the
consolidated balance sheet of the Issuer and its consolidated subsidiaries
contained in the most recent annual or quarterly report filed with the
Commission, or if the Issuer is not then subject to the Securities Exchange
Act of 1934, the most recent annual or quarterly report to shareholders and,
in respect of any Subsidiary as of any date of determination, the amount of
total assets of such Subsidiary and its consolidated subsidiaries from which
such consolidated balance sheet of the Issuer and its consolidated
Subsidiaries was derived.
"CORPORATE TRUST OFFICE" means the principal office of the
Trustee at which, at any time, its corporate trust business shall be
administered, which office at the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time
to time by notice to the Holders and the Issuer, or the principal corporate
trust office of any successor Trustee (or such other address as such successor
Trustee may designate from time to time by notice to the Holders and the
Issuer).
"COUPON" means any interest coupon appertaining to an
Unregistered Security.
"COVENANT DEFEASANCE" shall have the meaning set forth in
Section 10.5.
"DEFEASANCE" shall have the meaning set forth in Section
10.4.
"DEPOSITARY" means, with respect to the Securities of any
series issuable or issued in global form, the Person designated as Depositary
by the Issuer pursuant to Section 2.3 until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "DEPOSITARY" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"DEPOSITARY" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Registered Securities in global form
of that series.
"DOLLAR" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
"ECU" means the Euro or such other European Currency Unit as
may defined and revised from time to time by the Council of European
Communities.
"EVENT OF DEFAULT" means any event or condition specified
as such in Section 5.1.
"FAIR VALUE" when used with respect to Voting Shares means
the fair value as determined in good faith by the Board of Directors of the
Issuer.
"FOREIGN CURRENCY" means a currency issued by the government
of a country other than the United States.
"HOLDER," "HOLDER OF SECURITIES," "SECURITYHOLDER" or other
similar terms mean (1) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (2) in the
case of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"INDEBTEDNESS" shall have the meaning set forth in Section
5.1.
"INDENTURE" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"ISSUER" means ▇▇▇▇▇▇.▇▇▇ India Limited, limited liability
company organized under the laws of the Republic of India and, subject to
Article IX, its successors and assigns.
"ISSUER ORDER" means a written statement, request or order
of the Issuer signed in its name by the chairman or deputy chairman of the
Board of Directors, the president, any executive, senior or other vice
president or the treasurer of the Issuer.
"JUDGMENT CURRENCY" shall have the meaning set forth in
Section 11.12.
"OFFICER'S CERTIFICATE" means a certificate signed by the
chairman or deputy chairman of the Board of Directors, the president or any
executive, senior or other vice president or the treasurer of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939 and include the statements provided for in
Section 11.5.
"OPINION OF COUNSEL" means an opinion in writing signed by
the General Counsel of the Issuer or by such other legal counsel who may be an
employee of or counsel to the Issuer. Each such opinion shall comply with
Section 314 of the Trust Indenture Act of 1939 and include the statements
provided for in Section 11.5.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof)
means the earlier of (1) the date of such Security or (2) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.1.
"OUTSTANDING" (except as otherwise provided in Sections 7.4,
10.4 and 10.5), when used with reference to Securities, shall, subject to the
provisions of Sections 7.4, 10.4 and 10.5 mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
(1) Securities theretofore canceled by the Trustee or
accepted by the Trustee for cancellation;
(2) Securities, or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations (as
provided for in Section 10.1) in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the Holders of such Securities (if the Issuer
shall act as its own paying agent), provided that if such Securities,
or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(3) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.9 (except with respect
to any such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Issuer) or
Securities not deemed outstanding pursuant to Section 12.2.
In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.1.
"PERIODIC OFFERING" means an offering of Securities of a
series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
"PERSON" means a legal person, including any individual,
company, limited liability company, corporation, estate, partnership, limited
liability partnership, joint venture, association, joint shares company,
trust, unincorporated organization or government or any agency or political
subdivision thereof or any other entity of whatever nature.
"PRINCIPAL" whenever used with reference to the Securities
or any Security or any portion thereof, shall be deemed to include "and
premium, if any."
"RECORD DATE" shall have the meaning set forth in Section
2.7.
"REGISTERED SECURITY" means any Security registered on the
Security register of the Issuer.
"REQUIRED CURRENCY" shall have the meaning set forth in
Section 11.12.
"RESPONSIBLE OFFICER" when used with respect to the Trustee
means any vice president, any senior trust officer or any trust officer, any
assistant vice president, any assistant treasurer, or any other officer or
assistant officer associated with [the corporate trust department] of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
"SECURITY" or "SECURITIES" has the meaning stated in the
first recital of this Indenture, or, as the case may be, Securities that have
been authenticated and delivered under this Indenture.
"SENIOR INDEBTEDNESS" means the principal of and premium, if
any, and interest and Additional Amounts on (1) all indebtedness of the
Issuer, whether outstanding on the date of this Indenture or thereafter
created, (a) for money borrowed by the Issuer, (b) for money borrowed by, or
obligations of, others and either assumed or guaranteed, directly or
indirectly, by the Issuer, (c) in respect of letters of credit and acceptances
issued or made by banks, or (d) constituting purchase money indebtedness, or
indebtedness secured by property included in the property, plant and equipment
accounts of the Issuer at the time of the acquisition of such property by the
Issuer, for the payment of which the Issuer is directly liable, and (2) all
deferrals, renewals, extensions and refundings of, and amendments,
modifications and supplements to, any such indebtedness. As used in the
preceding sentence the term "purchase money indebtedness" means indebtedness
evidenced by a note, debenture, bond or other instrument (whether or not
secured by any lien or other security interest) issued or assumed as all or a
part of the consideration for the acquisition of property, whether by
purchase, merger, consolidation or otherwise, unless by its terms such
indebtedness is subordinate to other indebtedness of the Issuer.
Notwithstanding anything to the contrary in this Indenture or the Securities,
Senior Indebtedness shall not include (a) any indebtedness of the Issuer
which, by its terms or the terms of the instrument creating or evidencing it,
is subordinate in right of payment to or pari passu with the Securities or (b)
any indebtedness of the Issuer to a Subsidiary.
"SUBSIDIARY" means any corporation, partnership or other
entity of which at the time of determination the Issuer owns or controls
directly or indirectly more than 50% of the shares of Voting Shares.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided
in Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at
the date as of which this Indenture was originally executed.
"TRUSTEE" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article VI, shall
also include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the trustee with respect to the Securities of such series.
"UNREGISTERED SECURITY" means any Security other than a
Registered Security.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (1)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (2) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the timely payment of which is unconditionally guaranteed by
the full faith and credit of the United States of America which, in either
case, are not callable or redeemable at the option of the issuer thereof or
otherwise subject to prepayment, and shall also include a depository receipt
issued by a New York Clearing House bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment or
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt or
from any amount held by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"VOTING SHARES" means shares of any class or classes having
general voting power under ordinary circumstances to elect a majority of the
board of directors, managers or trustees of the corporation in question,
provided that, for the purposes hereof, shares which carry only the right to
vote conditionally on the happening of an event shall not be considered voting
shares whether or not such event shall have happened.
"YIELD TO MATURITY" means the yield to maturity on a series
of securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
Section 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officer's Certificate detailing such establishment) 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 imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined
by the officers executing such Securities and Coupons, if any, as evidenced by
their execution of such Securities and Coupons. If temporary Securities of any
series are issued as permitted by Section 2.11, the form thereof also shall be
established as provided in the preceding sentence. If the forms of Securities
and Coupons, if any, of the series are established by, or by action taken
pursuant to, a Board Resolution, a copy of the Board Resolution together with
an appropriate record of any such action taken pursuant thereto, including a
copy of the approved form of Securities or Coupons, if any, shall be certified
by the [Secretary] or an [Assistant Secretary] of the Issuer and delivered to
the Trustee at or prior to the delivery of the Issuer Order contemplated by
Section 2.4 for the authentication and delivery of such Securities.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
Section 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within mentioned
Indenture.
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By
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Authorized Signatory"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee's
Certificate of Authentication to be borne by the Securities of each such
series shall be substantially as follows:
"This is one of the Securities referred to in the within mentioned
Indenture.
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By
---------------------------------------
as Authenticating Agent"
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By
---------------------------------------
Authorized Signatory"
Section 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in
one or more series and each such series shall rank equally and pari passu with
the Securities of each other series, but all Securities issued hereunder and
any Coupons and the payment of principal of and interest on any Securities and
any Coupons shall be subordinated and junior in right of payment, to the
extent and in the manner set forth in Article 13, to all Senior Indebtedness
and effectively to all secured indebtedness of the Issuer. There shall be
established in or pursuant to one or more Board Resolutions (and to the extent
established pursuant to rather than set forth in a Board Resolution, in an
Officer's Certificate detailing such establishment) or established in one or
more indentures supplemental hereto, prior to the initial issuance of
Securities of any series,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of all
other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited to, any
Foreign Currency or ECU);
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest shall
accrue, on which such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of Holders
to whom interest is payable and/or the method by which such rate or rates or
date or dates shall be determined;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than as
provided in Section 3.2);
(7) the right, if any, of the Issuer to redeem Securities,
in whole or in part, at its option and the period or periods within which, the
price or prices at which and any terms and conditions upon which Securities of
the series may be so redeemed, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices at which and the period or periods within
which and any terms and conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and $5,000 in
the case of Unregistered Securities, the denominations in which Securities of
the series shall be issuable;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the
Securities of that series are denominated, the coin or currency in which
payment of the principal of or interest on the Securities of such series shall
be payable;
(12) if the principal of or interest on the Securities of
such series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency other than that in which the Securities are
denominated, the period or periods within which, and the terms and conditions
upon which, such election may be made;
(13) if the amount of payments of principal of and interest
on the Securities of the series may be determined with reference to an index
based on a coin or currency other than that in which the Securities of the
series are denominated, the manner in which such amounts shall be determined;
(14) whether the Securities of the series will be issuable
as Registered Securities or Unregistered Securities (with or without Coupons),
and whether such Securities will be issuable in global form or any combination
of the foregoing, any restrictions applicable to the offer, sale or delivery
of Unregistered Securities or the payment of interest thereon and, if other
than as provided in Section 2.8, the terms upon and locations at which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(15) whether and under what circumstances the Issuer will
pay Additional Amounts on the Securities of the series held by a person in
respect of any tax, assessment or governmental charge withheld or deducted
and, if so, whether the Issuer will have the option to redeem such Securities
rather than pay such Additional Amounts;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(17) any Trustees, Depositaries, Authenticating Agents,
paying or transfer Agents or Registrars or any other agents with respect to
the Securities of such series;
(18) any deletions from, modifications of or additions to
the Events of Default or covenants with respect to the Securities of such
series;
(19) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events as may
be specified;
(20) the date as of which any Unregistered Securities of the
series and any temporary Security in global form representing Outstanding
Securities of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(21) the applicability, if any, to the Securities of or
within the series of Article X, or such other means of Defeasance or Covenant
Defeasance as may be specified for the Securities and Coupons, if any, of such
series;
(22) if the Securities of the series shall be issued in
whole or in part in global form (a) the Depositary for such global Securities,
(b) the form of any legend in addition to or in lieu of that in Section 2.4
which shall be borne by such global security, (c) whether beneficial owners of
interests in any Securities of the series in global form may exchange such
interests for certificated Securities of such series and of like tenor of any
authorized form and denomination, and (d) if other than as provided in Section
2.8, the circumstances under which any such exchange may occur;
(23) the right of the Issuer, if any, to defer any payment
of principal of or interest on the Securities of the series, or any tranche
thereof, and the maximum length of any such deferral period; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officer's Certificate
referred to above or as set forth in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and may
pursuant to the Board Resolution or Officer's Certificate be issued from time
to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officer's Certificate or in any such
indenture supplemental hereto.
Section 2.4 Authentication and Delivery of Securities.
(1) The Issuer may deliver Securities of any series having
attached thereto appropriate Coupons, if any, executed by the Issuer to the
Trustee for authentication together with the applicable documents referred to
below in this Section, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the order of the Issuer (contained in the
Issuer Order referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be specified from time
to time by an Issuer Order. The maturity date, original issue date, interest
rate and any other terms of the Securities of such series and Coupons, if any,
appertaining thereto shall be determined by or pursuant to such Issuer Order
and procedures. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall receive and (subject to Section 6.1) shall be fully protected in
relying upon, unless and until such documents have been superseded or revoked:
(a) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities and Coupons, if
any, are not to be delivered to the Issuer, provided that, with respect
to Securities of a series subject to a Periodic Offering, (i) such Issuer
Order may be delivered by the Issuer to the Trustee prior to the delivery
to the Trustee of such Securities for authentication and delivery, (ii)
the Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to procedures acceptable to the
Trustee as may be specified from time to time by an Issuer Order and
(iii) the maturity date or dates, original issue date or dates, interest
rate or rates and any other terms of Securities of such series shall be
determined by an Issuer Order or pursuant to such procedures;
(b) any Board Resolution, Officer's Certificate and/or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities and Coupons, if
any, were established;
(c) an Officer's Certificate setting forth the form or
forms and terms of the Securities and Coupons, if any, stating that the
form or forms and terms of the Securities and Coupons, if any, have been
established pursuant to Sections 2.1 and 2.3 and comply with this
Indenture, and covering such other matters as the Trustee may reasonably
request; and
(d) at the option of the Issuer, either one or more
Opinions of Counsel, or a letter addressed to the Trustee permitting it
to conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, on one or more Opinions of
Counsel, substantially to the effect that:
(i) the forms of the Securities and Coupons, if
any, have been duly authorized and established in conformity with
the provisions of this Indenture;
(ii) in the case of an underwritten offering, the
terms of the Securities have been duly authorized and established in
conformity with the provisions of this Indenture, and, in the case
of an offering that is not underwritten, certain terms of the
Securities have been established pursuant to a Board Resolution, an
Officer's Certificate or a supplemental indenture in accordance with
this Indenture, and when such other terms as are to be established
pursuant to procedures set forth in an Issuer Order shall have been
established, all such terms will have been duly authorized by the
Issuer and will have been established in conformity with the
provisions of this Indenture;
(iii) when the Securities and Coupons, if any,
have been executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered to
and duly paid for by the purchasers thereof, they will have been
duly issued under this Indenture, will be entitled to the benefits
of this Indenture, and will be valid and binding obligations of the
Issuer, enforceable in accordance with their respective terms except
as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability; and
(iv) that all applicable laws and requirements in
respect of the execution and delivery by the Issuer of such
Securities have been complied with.
In rendering such opinions, any counsel may qualify any
opinions as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such
counsel may rely upon opinions of other counsel (copies of which shall be
delivered to the Trustee), who shall be counsel reasonably satisfactory to the
Trustee, in which case the opinion shall state that such counsel believes he
or she and the Trustee are entitled so to rely. Such counsel may also state
that, insofar as such opinion involves factual matters, he or she has relied,
to the extent he or she deems proper, upon certificates of officers of the
Issuer and its subsidiaries and certificates of public officials.
(2) The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken by the Issuer or if the Trustee in good faith by its board of directors
or board of trustees, executive committee, or a trust committee of directors
or trustees or Responsible Officers shall determine that such action would
expose the Trustee to personal liability to existing Holders or would affect
the Trustee's own rights, duties or immunities under the Securities, this
Indenture or otherwise.
(3) If the Issuer shall establish pursuant to Section 2.3
that the Securities of a series are to be issued in whole or in part in global
form, then the Issuer shall execute and the Trustee shall, in accordance with
this Section and the Issuer Order with respect to such series, authenticate
and deliver one or more Securities in global form that (a) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series issued and not yet canceled, (b) if such
Securities are Registered Securities, shall be registered in the name of the
Depositary for such Security or Securities in global form or the nominee of
such Depositary, (c) if such Securities are Registered Securities, shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions and (d) shall bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for Securities
in definitive form, this Security may not be transferred except as a whole by
the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
(4) Each Depositary designated pursuant to Section 2.3 must,
at the time of its designation and at all times while it serves as Depositary,
be a clearing agency registered under the Securities Exchange Act of 1934 and
any other applicable statute or regulation.
Section 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by the [chairman] or [deputy chairman] of its Board of Directors or its
president or any executive, senior or other vice president or its treasurer,
which may, but need not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. Typographical
and other minor errors or defects in any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated
and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any
of the Securities or Coupons, if any, shall cease to be such officer before
the Security or Coupon so signed (or the Security to which the Coupon so
signed appertains) shall be authenticated and delivered by the Trustee or
disposed of by the Issuer, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the person who signed
such Security or Coupon had not ceased to be such officer of the Issuer; and
any Security or Coupon may be signed on behalf of the Issuer by such persons
as, at the actual date of the execution of such Security or Coupon, shall be
the proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
Section 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form herein before recited, executed by the Trustee by the manual
signature of one of its authorized signatories, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. No
Coupon shall be entitled to the benefits of this Indenture or shall be valid
and obligatory for any purpose until the certificate of authentication on the
Security to which such Coupon appertains shall have been duly executed by the
Trustee. The execution of such certificate by the Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
Section 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series
are not so established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as
the officers of the Issuer executing the same may determine with the approval
of the Trustee, as evidenced by the execution and authentication thereof. Each
Registered Security shall be dated the date of its authentication. Each
Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section
2.3. The Securities of each series shall bear interest, if any, from the date,
and such interest shall be payable on the dates, established as contemplated
by Section 2.3.
The person in whose name any Registered Security of any
series is registered at the close of business on any record date applicable to
a particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Issuer shall default in the payment of
the interest due on such interest payment date for such series, in which case
such defaulted interest shall be paid to the persons in whose names
Outstanding Registered Securities for such series are registered at the close
of business on a subsequent record date (which shall be not less than five
Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the
Holders of Registered Securities not less than 15 days preceding such
subsequent record date, as determined by the Trustee. The term "record date"
as used with respect to any interest payment date (except a date for payment
of defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the next preceding calendar month or, if such
interest payment date is the fifteenth day of a calendar month, the first day
of such calendar month, whether or not such record date is a Business Day.
Section 2.8 Registration, Transfer and Exchange. The Issuer
will keep at each office or agency to be maintained for the purpose as
provided in Section 3.2 for each series of Securities a register or registers
in which, subject to such reasonable regulations as it may prescribe, it will
provide for the registration of Registered Securities of such series and the
registration of transfer of Registered Securities of such series. Such
register shall be in written form in the English language. At all reasonable
times such register or registers shall be open for inspection by the Trustee.
(1) Subject to the prior written consent of the Reserve Bank
of India, where applicable, upon due presentation for registration of transfer
of any Registered Security of any series at any such office or agency to be
maintained for the purpose as provided in Section 3.2, the Issuer shall
execute and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Registered Securities
of the same series, maturity date, interest rate and original issue date in
authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary
Unregistered Securities in global form) and Coupons (except for Coupons
attached to any temporary Unregistered Securities in global form) shall be
transferable by delivery.
(2) (a) Subject to the applicable regulations of the Reserve
Bank of India, at the option of the Holder thereof, Registered Securities of
any series (other than a Registered Security in global form, except as set
forth below) may be exchanged for a Registered Security or Registered
Securities of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Registered Securities to be
exchanged at the agency of the Issuer that shall be maintained for such
purpose in accordance with Section 3.2 and upon payment, if the Issuer shall
so require, of the charges hereinafter provided. Whenever any Registered
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive.
(b) Unless otherwise specified as contemplated by
Section 2.3, at the option of the Holder, Unregistered Securities of such
series may be exchanged for Registered Securities (if the Securities of
such series are issuable in registered form) or Unregistered Securities
(if Unregistered Securities of such series are issuable in more than one
denomination and such exchanges are permitted by such series) of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2, with all unmatured Coupons and all matured
Coupons in default thereto appertaining. If the Holder of an Unregistered
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 Unregistered Securities are accompanied by payment in funds
acceptable to the Issuer 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 Issuer 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 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 as
provided in Section 3.2. Notwithstanding the foregoing, in case any
Unregistered Security of any series is surrendered at any such office or
agency in exchange for a Registered Security of the same series after the
close of business at such office or agency on (i) any 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 for payment of
defaulted interest and before the opening of business at such office or
agency on the related date for payment of defaulted interest, such
Unregistered Security shall be surrendered without the Coupon relating to
such interest or defaulted interest payment date or proposed date of
payment, as the case may be (or, if such Coupon is so surrendered with
such Unregistered Security, such Coupon shall be returned to the person
so surrendering the Unregistered Security), and interest or defaulted
interest, as the case may be, will not be payable on such date or
proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Unregistered Security,
but will be payable only to the Holder of such Coupon, when due in
accordance with the provisions of this Indenture.
(c) Registered Securities of any series may not be
exchanged for Unregistered Securities of such series unless (i) otherwise
specified pursuant to Section 2.3 and (ii) the Issuer has delivered to
the Trustee an Opinion of Counsel that (A) the Issuer has received from
the Internal Revenue Service a ruling or (B) since the date hereof, there
has been a change in the applicable Federal income tax law, in either
case to the effect that the inclusion of terms permitting Registered
Securities to be exchanged for Unregistered Securities would result in no
adverse Federal income tax effect to the Issuer or to any Holder.
Whenever any Securities are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive. All
Securities and Coupons surrendered upon any exchange or transfer provided
for in this Indenture shall be canceled promptly and disposed of by the
Trustee in accordance with its procedures for the disposition of
cancelled securities in effect as of the date of such cancellation and
the Trustee will deliver a certificate of disposition thereof to the
Issuer.
(3) All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by the Holder or his or her attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
(4) Notwithstanding any other provision of this Section 2.8,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Security in global form representing
all or a portion of the Securities of a series may not be transferred except
as a whole by the Depositary for such series to a nominee of such Depositary
or by a nominee of such Depositary to such Depositary or another nominee of
such Depositary or by such Depositary or any such nominee to a successor
Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities
of a series represented by one or more Registered Securities in global form
notifies the Issuer that it is unwilling or unable to continue as Depositary
for such Registered Securities or if at any time the Depositary for such
Registered Securities shall no longer be eligible under Section 2.4, the
Issuer shall appoint a successor Depositary eligible under Section 2.4 with
respect to such Registered Securities. If a successor Depositary eligible
under Section 2.4 for such Registered Securities is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes aware
of such ineligibility, the Issuer's election pursuant to Section 2.3 that such
Registered Securities be represented by one or more Registered Securities in
global form shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
Coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Security or Securities in
global form representing such Registered Securities in exchange for such
Registered Security or Securities in global form.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of
one or more Registered Securities in global form shall no longer be
represented by a Registered Security or Securities in global form. In such
event the Issuer will execute, and the Trustee, upon receipt of an Officer's
Certificate for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series in
definitive registered form without Coupons, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of the
Registered Security or Securities in global form representing such Registered
Securities, in exchange for such Registered Security or Securities in global
form.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Security in global form, the
Depositary for such Registered Security in global form may surrender such
Registered Security in global form in exchange in whole or in part for
Registered Securities of the same series in definitive form on such terms as
are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(a) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Registered Security in global form; and
(b) to such Depositary a new Registered Security in
global form in a denomination equal to the difference, if any, between
the principal amount of the surrendered Registered Security in global
form and the aggregate principal amount of Registered Securities
authenticated and delivered pursuant to clause (a) above.
Upon the exchange of a Registered Security in global form
for Registered Securities in definitive form without Coupons, in authorized
denominations, such Registered Security in global form shall be canceled by
the Trustee or an agent of the Issuer or the Trustee. Registered Securities in
definitive form issued in exchange for a Registered Security in global form
pursuant to this Section 2.8 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Security in
global form, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or an agent of the Issuer or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
(5) All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
(6) Notwithstanding anything herein or in the terms of any
series of Securities to the contrary, none of the Issuer, the Trustee or any
agent of the Issuer or the Trustee (any of which, other than the Issuer, shall
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, on an Officer's Certificate and an Opinion of
Counsel) shall be required to exchange any Unregistered Security for a
Registered Security if such exchange would result in adverse income tax
consequences to the Issuer.
(7) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or
among depositary participants or beneficial owners of interests in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any Security or any Coupon appertaining to any Security
shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer in
its discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver a new Security of the same
series, maturity date, interest rate and original issue date, bearing a number
or other distinguishing symbol not contemporaneously outstanding, in exchange
and substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the applicant for
a substitute Security or Coupon shall furnish to the Issuer and to the Trustee
and any agent of the Issuer or the Trustee such security or indemnity
satisfactory to them to indemnify and defend and to save each of them harmless
and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon and
of the ownership thereof and in the case of mutilation or defacement shall
surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) or its agent
connected therewith. In case any Security or Coupon which has matured or is
about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead
of issuing a substitute Security, pay or authorize the payment of the same or
the relevant Coupon (without surrender thereof except in the case of a
mutilated or defaced Security or Coupon), if the applicant for such payment
shall furnish to the Issuer and to the Trustee and any agent of the Issuer or
the Trustee such security or indemnity satisfactory to them to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer
or the Trustee evidence to their satisfaction of the destruction, loss or
theft of such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact that any such
Security or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security or Coupon shall be at any time enforceable by anyone and shall
be entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Securities or Coupons of such series duly authenticated
and delivered hereunder. All Securities and Coupons shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and Coupons and
shall preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.10 Cancellation of Securities; Destruction
Thereof. All Securities and Coupons surrendered for payment, redemption,
registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer or any
agent of the Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or its agent for cancellation or, if surrendered to
the Trustee, shall be canceled by it; and no Securities or Coupons shall be
issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Trustee or its agent shall dispose of canceled
Securities and Coupons held by it in accordance with its customary procedures
for the disposition of cancelled securities in effect as of the date of such
cancellation. If the Issuer or its agent shall acquire any of the Securities
or Coupons, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities or Coupons unless and until
the same are delivered to the Trustee or its agent for cancellation.
Section 2.11 Temporary Securities. Pending the preparation
of definitive Securities for any series, the Issuer may execute and the
Trustee shall authenticate and deliver temporary Securities for such series
(printed, lithographed, typewritten or otherwise reproduced, in each case in
form satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered
Securities with or without Coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Registered Securities of such series may be surrendered in
exchange therefor without charge at each office or agency to be maintained by
the Issuer for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer for such
purpose as specified pursuant to Section 3.2, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the
same series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so
exchanged, the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series,
unless otherwise established pursuant to Section 2.3. The provisions of this
Section are subject to any restrictions or limitations on the issue and
delivery of temporary Unregistered Securities of any series that may be
established pursuant to Section 2.3 (including any provision that Unregistered
Securities of such series initially be issued in the form of a single
Unregistered Security in global form to be delivered to a Depositary or agency
located outside the United States and the procedures pursuant to which
Unregistered Securities in definitive or global form of such series would be
issued in exchange for such temporary Unregistered Security in global form).
Section 2.12 CUSIP Numbers. The Issuer in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so used
by the Issuer, the Trustee shall use "CUSIP" numbers in notices of redemption
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuer will promptly notify the Trustee in
writing of any change in the "CUSIP" numbers.
ARTICLE III
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal, Premium, Interest and
Additional Amounts. The Issuer covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay or cause to be paid
the principal of, and premium, if any, and interest on, each of the Securities
of such series (together with any Additional Amounts payable pursuant to the
terms of such Securities) at the place or places, at the respective times and
in the manner provided in such Securities and in the Coupons, if any,
appertaining thereto and in this Indenture. The interest on Securities with
Coupons attached (together with any Additional Amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and
surrender of the several Coupons for such interest installments as are
evidenced thereby as they severally mature. If any temporary Unregistered
Security provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security
(together with any Additional Amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest evidenced by
Coupons attached thereto, if any, only upon presentation and surrender
thereof, and, as to the other installments of interest, if any, only upon
presentation of such Securities for notation thereon of the payment of such
interest, in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities (together with
any Additional Amounts payable pursuant to the terms of such Securities) shall
be payable only to or upon the written order of the Holders thereof and, at
the option of the Issuer, may be paid by wire transfer or by mailing checks
for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the registry books of the Issuer.
Section 3.2 Offices for Payments, Etc. So long as any
Securities are issued as Registered Securities, the Issuer will maintain in
[the Borough of Manhattan, The City of New York], an office or agency where
the Registered Securities of each series may be presented for payment, where
the Securities of each series may be presented for exchange as is provided in
this Indenture and, if applicable, pursuant to Section 2.3 and where the
Registered Securities of each series may be presented for registration of
transfer as in this Indenture provided.
So long as any Securities are issued as Unregistered
Securities, the Issuer will maintain one or more offices or agencies in a city
or cities located outside the United States (including any city in which such
an agency is required to be maintained under the rules of any shares exchange
on which the Securities of such series are listed) where the Unregistered
Securities, if any, of each series and Coupons, if any, appertaining thereto
may be presented for payment. No payment on any Unregistered Security or
Coupon will be made upon presentation of such Unregistered Security or Coupon
at an agency of the Issuer within the United States nor will any payment be
made by transfer to an account in, or by mail to an address in, the United
States unless pursuant to applicable United States laws and regulations then
in effect such payment can be made without adverse tax consequences to the
Issuer. [Notwithstanding the foregoing, payments in Dollars on Unregistered
Securities of any series and Coupons appertaining thereto which are payable in
Dollars may be made at an agency of the Issuer maintained in the Borough of
Manhattan, The City of New York, if such payment in Dollars at each agency
maintained by the Issuer outside the United States for payment on such
Unregistered Securities is illegal or effectively precluded by exchange
controls or other similar restrictions. The Issuer will maintain in the
Borough of Manhattan, The City of New York], an office or agency where notices
and demands to or upon the Issuer in respect of the Securities of any series,
the Coupons appertaining thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of location thereof.
In case the Issuer shall fail to maintain any agency required by this Section,
or shall fail to give such notice of the location or of any change in the
location of any of the above agencies, presentations and demands may be made
and notices may be served at the [Corporate Trust Office] of the Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series and any
Coupons appertaining thereto may be presented for payment, where the
Securities of that series may be presented for exchange as provided in this
Indenture and pursuant to Section 2.3 and where the Registered Securities of
that series may be presented for registration of transfer as in this Indenture
provided, and the Issuer may from time to time rescind any such designation,
as the Issuer may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain the agencies provided for in this Section. The Issuer
will give to the Trustee prompt written notice of any such designation or
rescission thereof.
Section 3.3 Money for Security Payments to be Held in Trust;
Unclaimed Money. If the Issuer shall at any time act as its own paying agent,
it will, on or before each due date of the principal of and premium, if any,
or interest or Additional Amounts on any of the Securities, segregate and hold
in trust for the benefit of the Holders entitled thereto a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due until such
sums shall be paid to such Holders or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more paying agents, it will, on or prior
to each due date of the principal of and premium, if any, or interest or
Additional Amounts on any Securities, deposit with the paying agent or paying
agents a sum sufficient to pay the principal, premium, if any, or interest or
Additional Amounts so becoming due, such sum to be held in trust for the
benefit of the Holders entitled to such principal, premium, if any, or
interest or Additional Amounts, and, unless such paying agent is the Trustee,
the Issuer will promptly notify the Trustee of its action or failure so to
act. The Issuer will cause each paying agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such paying agent shall
agree with the Trustee, subject to the provisions of this Section, that such
paying agent will:
(1) hold all sums held by it for the payment of the
principal of and premium, if any, or interest or Additional Amounts on
Securities in trust for the benefit of the Holders entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Issuer (or
any other obligor upon the Securities) in the making of any payment of
principal and premium, if any, or interest or Additional Amounts; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any paying agent to pay, to the Trustee all sums held
in trust by the Issuer or such paying agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Issuer or such paying agent; and, upon such payment by any paying agent to the
Trustee, such paying agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any paying agent, or
then held by the Issuer in trust for the payment of the principal of and
premium, if any, or interest or Additional Amounts on any Security and
remaining unclaimed for two years after such principal and premium, if any, or
interest or Additional Amounts has become due and payable shall be paid to the
Issuer on Issuer Order, or, if then held by the Issuer, shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Trustee or such paying agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being
required to make any such repayment, shall at the expense of the Issuer cause
to be published at least once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer
Section 3.4 Statements of Officers of Issuer as to Default;
Notice of Default.
(1) The Issuer will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Issuer ending after the date hereof,
a certificate, signed by the principal executive officer, principal financial
officer or principal accounting officer, stating whether or not to the best
knowledge of the signer thereof the Issuer is in default (without regard to
periods of grace or requirements of notice) in the performance and observance
of any of the terms, provisions and conditions hereof, and if the Issuer shall
be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge.
(2) The Issuer shall deliver to the Trustee written notice
of the occurrence of any default or Event of Default within five Business Days
of its becoming aware of any such default or Event of Default.
Section 3.5 Existence. Subject to Article IX, the Issuer
will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights (charter and statutory) and franchises
and those of each of its Subsidiaries; provided, however, that the Issuer
shall not be required to preserve any such right or franchise if the Issuer
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Issuer or the business of any Subsidiary.
Section 3.6 Maintenance of Properties. The Issuer will cause
all properties used or useful in the conduct of its business or the business
of any Subsidiary to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Issuer may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Issuer from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the
judgment of the Issuer, desirable in the conduct of its business or the
business of any Subsidiary.
Section 3.7 Payment of Taxes and Other Claims. The Issuer
shall pay or discharge or cause to be paid or discharged, before the same
shall become delinquent, (1) all taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to
taxes) levied or imposed upon the Issuer or any Subsidiary or upon the income,
profits or property of the Issuer or any Subsidiary, and (2) all material
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Issuer or any Subsidiary; provided,
however, that the Issuer shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 3.8 Further Instruments and Acts. Upon request of
the Trustee or as necessary, the Issuer will execute and deliver such further
instruments and perform such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
Section 3.9 Commission Reports. The Issuer shall provide to
the Trustee, within 15 days after it files such annual and other periodic
reports, information, documents and other reports with the Commission, copies
of its annual report and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may by rules
and regulations prescribe) which the Issuer is required to file with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934. Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates). The Trustee shall be
under no obligation to analyze or make any credit decisions with respect to
reports or other information received by it pursuant to this section, but
shall hold such reports and other information solely for the benefit of, and
review by, the security holders.
Section 3.10 Calculation of Original Issue Discount. The
Issuer shall file with the Trustee promptly at the end of each calendar year
(1) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods), if any, accrued on Outstanding
Securities as of the end of such year and (2) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders. If and so long as the Trustee shall
not be the Security registrar for the Securities of any series, the Issuer and
any other obligor on the Securities will furnish or cause to be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Registered Securities of such series
pursuant to Section 312 of the Trust Indenture Act of 1939 (1) semi-annually
not more than 5 days after each record date for the payment of interest on
such Registered Securities, as hereinabove specified, as of such record date
and on dates to be determined pursuant to Section 2.3 for non-interest bearing
Registered Securities in each year, and (2) at such other times as the Trustee
may request in writing, within thirty days after receipt by the Issuer of any
such request as of a date not more than 15 days prior to the time such
information is furnished.
Section 4.2 Preservation of Information; Communications to Holders.
(1) 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 4.1 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar or paying agent. The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new list so furnished.
(2) The rights of 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 of 1939.
(3) Every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer 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 in accordance with Sections 4.1 and 4.2(2), 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 4.2(2).
Section 4.3 Reports by the Trustee. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted within 60 days after May 15 in each year beginning 2005, as
provided in Section 313(c) of the Trust Indenture Act of 1939, so long as any
Securities are Outstanding hereunder, and shall be dated as of May 15, if
required by and in compliance with Section 313(a) of the Trust Indenture Act
of 1939. A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange, if any, upon
which the Securities are listed, with the Commission and with the Issuer. The
Issuer will promptly notify the Trustee when the Securities are listed on any
securities exchange and of any delisting thereof.
Section 4.4 Payment of Additional Amounts. The Issuer will
make all payments of principal of and premium, if any, interest and any other
amounts on, or in respect of, the Securities without withholding or deduction
at source for, or on account of, any present or future taxes, fees, duties,
assessments or governmental charges of whatever nature imposed or levied by or
on behalf of [the Republic of India] or any other jurisdiction in which the
Issuer is organized (a "taxing jurisdiction") or any political subdivision or
taxing authority thereof or therein, unless such taxes, fees, duties,
assessments or governmental charges are required to be withheld or deducted by
(x) the laws (or any regulations or rulings promulgated thereunder) of a
taxing jurisdiction or any political subdivision or taxing authority thereof
or therein or (y) an official position regarding the application,
administration, interpretation or enforcement of any such laws, regulations or
rulings (including, without limitation, a holding by a court of competent
jurisdiction or by a taxing authority in a taxing jurisdiction or any
political subdivision thereof). If a withholding or deduction at source is
required, the Issuer will, subject to certain limitations and exceptions
described below, pay to the Holder of any Security such Additional Amounts as
may be necessary so that every net payment of principal, premium, if any,
interest or any other amount made to such Holder, after the withholding or
deduction, will not be less than the amount provided for in such Security or
in the indenture to be then due and payable.
The Issuer will not be required to pay any Additional
Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental charge of
whatever nature which would not have been imposed but for the fact that such
Holder (a) was a resident, domiciliary or national of, or engaged in business
or maintained a permanent establishment or was physically present in, the
relevant taxing jurisdiction or any political subdivision thereof or otherwise
had some connection with the relevant taxing jurisdiction other than by reason
of the mere ownership of, or receipt of payment under, such Security, (b)
presented, where presentation is required, such Security for payment in the
relevant taxing jurisdiction or any political subdivision thereof, unless such
Security could not have been presented for payment elsewhere, or (c)
presented, where presentation is required, such Security for payment more than
30 days after the date on which the payment in respect of such Security became
due and payable or provided for, whichever is later, except to the extent that
the Holder would have been entitled to such additional amounts if it had
presented such Security for payment on any day within that 30-day period;
(2) any estate, inheritance, gift, sale, transfer, capital
gains, stamp, personal property or similar tax, duty assessment or other
governmental charge;
(3) any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure by the Holder of such Security to
comply with any reasonable request by us addressed to the Holder within 90
days of such request (a) to provide information concerning the nationality,
residence or identity of the Holder or (b) to make any declaration or other
similar claim or satisfy any information or reporting requirement, which is
required or imposed by statute, treaty, regulation or administrative practice
of the relevant taxing jurisdiction or any political subdivision thereof as a
precondition to exemption from all or part of such tax, assessment or other
governmental charge;
(4) any withholding or deduction required to be made
pursuant to EU Council Directive 2003/48/EC of 3 June 2003 on the taxation of
savings income in the form of interest payments (the "EU Directive"), or any
law implementing or complying with, or introduced in order to conform to such
EU Directive; or
(5) any combination of items (1), (2), (3) and (4).
In addition, the Issuer will not pay Additional Amounts with
respect to any payment of principal of, or premium, if any, interest or any
other amounts on, any such Security to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such Security if such
payment would be required by the laws of the relevant taxing jurisdiction (or
any political subdivision or relevant taxing authority thereof or therein) to
be included in the income for tax purposes of a beneficiary or partner or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner to the extent such beneficiary, partner or settlor would not
have been entitled to such Additional Amounts had it been the Holder of the
Security.
Section 4.5 Redemption for Tax Purposes. The Issuer may
redeem the Securities at its option, in whole but not in part, at a redemption
price equal to 100% of the principal amount, together with accrued and unpaid
interest and Additional Amounts, if any, to the date fixed for redemption, at
any time the Issuer receives an opinion of counsel that as a result of (1) any
change in or amendment to the laws or treaties (or any regulations or rulings
promulgated under these laws or treaties) of [the Republic of India] or any
taxing jurisdiction (or of any political subdivision or taxation authority
affecting taxation) or any change in the application or official
interpretation of such laws, regulations or rulings, or (2) any action taken
by a taxing authority of [the Republic of India] or any taxing jurisdiction
(or any political subdivision or taxing authority affecting taxation) which
action is generally applied or is taken with respect to the Issuer, or (3) a
decision rendered by a court of competent jurisdiction in [the Republic of
India] or any taxing jurisdiction (or any political subdivision) whether or
not such decision was rendered with respect to the Issuer, there is a
substantial probability that the Issuer will be required as of the next
interest payment date to pay Additional Amounts with respect to the Securities
as provided in Section 4.4 and such requirements cannot be avoided by the use
of reasonable measures (consistent with practices and interpretations
generally followed or in effect at the time such measures could be taken) then
available. If the Issuer elects to redeem the Securities under this provision,
the Issuer will give written notice of such election to the Trustee and the
Holders of the Securities. Interest on the Securities will cease to accrue
unless the Issuer defaults in the payment of the redemption price.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities of
any series wherever used herein, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body)
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in an indenture supplemental hereto, if any, under which
such series of Securities is issued:
(1) default in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30 days and
the interest payment date has not been properly extended or deferred;
provided, however, that if the Issuer is permitted by the terms of the
Securities of the applicable series to defer the payment in question, the date
on which such payment is due and payable shall be the date on which the Issuer
is required to make payment following such deferral, if such deferral has been
elected pursuant to the terms of the Securities of that series (subject to any
deferral of any due date in the case of an extension period); or
(2) default in the payment of all or any part of the
principal of, or premium, if any, or any Additional Amounts on any of the
Securities of such series, as and when the same shall become due and payable
either at maturity, upon any redemption, by declaration or otherwise;
provided, however, that if the Issuer is permitted by the terms of the
Securities of the applicable series to defer the payment in question, the date
on which such payment is due and payable shall be the date on which the Issuer
is required to make payment following such deferral, if such deferral has been
elected pursuant to the terms of the Securities of that series (subject to any
deferral of any due date in the case of an extension period); or
(3) default in the payment of any sinking fund installment
as and when the same shall become due and payable by the terms of the
Securities of such series; or
(4) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the Issuer in
the Securities of such series (other than a covenant or agreement in respect
of the Securities of such series a default in the performance or breach of
which is elsewhere in this Section specifically dealt with) or contained in
this Indenture (other than a covenant or agreement included in this Indenture
solely for the benefit of a series of Securities other than such series) for a
period of [90] days after the date on which written notice specifying such
failure, stating that such notice is a "Notice of Default" hereunder and
demanding that the Issuer remedy the same, shall have been given by registered
or certified mail, return receipt requested, to the Issuer by the Trustee, or
to the Issuer and the Trustee by the holders of at least [33]% in aggregate
principal amount of the Outstanding Securities of all series affected thereby;
or
(5) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Issuer as bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization of
the Issuer under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, and such decree or order shall have continued
undischarged and unstayed for a period of 120 days; or a decree or order of a
court having jurisdiction in the premises for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of the Issuer or
of its property, or for the winding up or liquidation of its affairs, shall
have been entered, and such decree or order shall have remained in force and
unstayed for a period of 120 days; or
(6) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or for any substantial part of its property, or make
any general assignment for the benefit of creditors, or shall admit in writing
its inability to pay its respective debts generally as they become due; or
(7) an event of default, as defined in any one or more
mortgages, indentures, instruments, bonds, debentures, notes or other similar
instruments under which there may be issued, or by which there may be secured
or evidenced, any indebtedness (other than the Securities of such series or
nonrecourse obligations) ("Indebtedness") in excess of [$25,000,000] for money
borrowed by the Issuer shall occur (after giving effect to any applicable
grace period), if such event of default shall result in the acceleration of
such Indebtedness prior to its expressed maturity unless such Indebtedness is
discharged or such acceleration is cured, waived, rescinded or annulled within
30 days after written notice thereof shall have been given by registered or
certified mail, return receipt requested, to the Issuer by the Trustee or to
the Issuer and the Trustee by the Holders of at least 33% in aggregate
principal amount of the Outstanding Securities (treated as one class) which
notice shall state that it is a "Notice of Default" hereunder; or
(8) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the form of
Security for such series; provided that if any such default or acceleration
referred to in clause (7) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon cured.
If an Event of Default described in clause (1), (2), (3),
(4) or (8) (if the Event of Default under clause (4) or (8), as the case may
be, is with respect to less than all series of Securities then Outstanding)
occurs and is continuing, then, and in each and every such case, except for
any series of Securities the principal of which shall have already become due
and payable, either the Trustee or the Holders of not less than 33% in
aggregate principal amount of the Securities of each such affected series then
Outstanding hereunder (voting as a single class) by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if the Securities of any such affected series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) of all Securities of all such
affected series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration, the same shall become
immediately due and payable. If an Event of Default described in clause (4) or
(8) (if the Event of Default under clause (4) or (8), as the case may be, is
with respect to all series of Securities then Outstanding) or (7) occurs and
is continuing, then and in each and every such case, unless the principal of
all the Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 33% in aggregate principal amount of
all the Securities then Outstanding hereunder (treated as one class), by
notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then Outstanding, and
interest accrued thereon and Additional Amounts, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable. If an Event of Default specified in clause (5) or (6) occurs,
all unpaid principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of all the Securities then Outstanding, and interest accrued thereon,
if any, shall be due and payable immediately, without any declaration or other
act on the part of the Trustee or any Securityholder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Issuer shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest and Additional Amounts, if any, upon all the
Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of each such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of each such series (or at the respective rates of interest or
Yields to Maturity of all the Securities, as the case may be) to the date of
such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, its
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence, bad faith or willful misconduct, and if any
and all Events of Default under the Indenture, other than the non-payment of
the principal of Securities which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein, then and in
every such case the Holders of a majority in aggregate principal amount of all
the Securities of each such series, or of all the Securities, in each case
voting as a single class, then Outstanding, by written notice to the Issuer
and to the Trustee, may waive all defaults with respect to each such series
(or with respect to all the Securities, as the case may be) and rescind and
annul such declaration and its consequences, but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
Section 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt.
(1) The Issuer covenants that (a) in case default shall be
made in the payment of any installment of interest on any of the Securities of
any series when such interest shall have become due and payable, and such
default shall have continued for a period of 30 days or (b) in case default
shall be made in the payment of all or any part of the principal of any
Additional Amounts on the Securities of any series when the same shall have
become due and payable, whether upon maturity of the Securities of such series
or upon any redemption or by declaration or otherwise, then upon demand of the
Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of
the Securities of such series the whole amount that then shall have become due
and payable on all Securities of such series, and such Coupons, for principal,
interest or Additional Amounts, as the case may be (with interest to the date
of such payment upon the overdue principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of
such series); and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and any expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee except as a
result of its negligence, bad faith or willful misconduct.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the
registered holders, whether or not the Securities of such series be overdue.
(2) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Issuer
or other obligor upon the Securities and collect in the manner provided by law
out of the property of the Issuer or other obligor upon the Securities,
wherever situated the moneys adjudged or decreed to be payable.
(3) In case there shall be pending proceedings relative to
the Issuer or any other obligor upon the Securities under Title 11 of the
United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its
property or such other obligor, or in case of any other comparable judicial
proceedings relative to the Issuer or other obligor upon the Securities, or to
the creditors or property of the Issuer or such other obligor, 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 pursuant to the provisions
of this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest and Additional Amounts (or, if the
Securities of any series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series) owing and unpaid in respect of the Securities of any series, 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
reasonable compensation to the Trustee and each predecessor Trustee, and
their respective agents, attorneys and counsel, and for reimbursement of
all expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of negligence,
bad faith or willful misconduct) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such other
obligor,
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the holders of the Securities of any
series in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings
or person performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of
negligence, bad faith or willful misconduct.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
(4) All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons
appertaining to such Securities, may be enforced by the Trustee without the
possession of any of such Securities or Coupons or the production thereof in
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for
the ratable benefit of the Holders of the Securities or Coupons appertaining
to such Securities in respect of which such action was taken.
(5) In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
Section 5.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of any series shall, subject
to the subordination provisions hereof, be applied in the following order at
the date or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal or interest or Additional Amounts, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to
such series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence, bad faith or willful misconduct;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest and Additional Amounts
on the Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for principal and interest
and Additional Amounts, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the Securities of such
series, then to the payment of such principal, interest and Additional Amounts
or Yield to Maturity, without preference or priority of principal over
interest, Additional Amounts or Yield to Maturity, or of interest, Additional
Amounts or Yield to Maturity over principal, or of any installment of interest
over any other installment of interest, or of any Security of such series over
any other Security of such series, ratably to the aggregate of such principal,
accrued and unpaid interest, Additional Amounts or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or as a court of competent jurisdiction shall direct in writing.
Section 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may
in its discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee shall
deem necessary to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
Section 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
Section 5.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series or of any Coupon appertaining thereto
shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of
the continuance thereof, as hereinbefore provided, and unless also the Holders
of not less than 33% in aggregate principal amount of the Securities of each
affected series then Outstanding (treated as a single class) shall have made
written request upon the Trustee to institute such action or proceedings in
its own name as trustee hereunder and shall have offered to the Trustee such
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 5.9; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security or Coupon with every
other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities shall have
any right in any manner whatever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other such
Holder of Securities or Coupons appertaining to such Securities, or to obtain
or seek to obtain priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all Holders of Securities of
the applicable series and Coupons appertaining to such Securities. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in this Indenture
and any provision of any Security, the right of any Holder of any Security or
Coupon to receive payment of the principal of and interest on such Security or
Coupon on or after the respective due dates expressed in such Security or
Coupon, or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section 5.6, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities or Coupons is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy. No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy
given by this Indenture or by law to the Trustee or to the Holders of
Securities or Coupons may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Holders of Securities or
Coupons.
Section 5.9 Control by Holders of Securities. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single class) at the time
Outstanding 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 by this Indenture; provided that such direction
shall not be otherwise than in accordance with law and the provisions of this
Indenture; provided further that (subject to the provisions of Section 6.1)
the Trustee shall have the right to decline to follow any such direction if
the Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions
or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to ascertain whether
or not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by
Securityholders.
Section 5.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities as provided in Section 5.1, the
Holders of a majority in aggregate principal amount of the Securities of all
series at the time Outstanding with respect to which an Event of Default shall
have occurred and be continuing, may (voting as a single class) on behalf of
the Holders of all such Securities waive any past default or Event of Default
described in Section 5.1 and its consequences, except a default in respect of
a covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of any such
waiver, the Issuer, the Trustee and the Holders of all such Securities shall
be restored to their former positions and rights hereunder, respectively; but
no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Upon any such waiver, such default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured, and not to have
occurred for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon.
Section 5.11 Trustee to Give Notice of Default, but May
Withhold in Certain Circumstances. Subject to Section 6.1(2)(e), the Trustee
shall, within ninety days after the occurrence of a default with respect to
the Securities of any series, give notice of all defaults with respect to that
series actually known to a Responsible Officer of the Trustee (1) if any
Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and (2) to all Holders of
Securities of such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act of 1939, unless in each case such defaults
shall have been cured before the mailing or publication of such notice (the
term "defaults" for the purpose of this Section being hereby defined to mean
any event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided that, except in the case of default in
the payment of the principal of or interest or Additional Amounts on any of
the Securities of such series, or in the payment of any sinking fund
installment on such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
Section 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his or her acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders of any series
holding in the aggregate more than 10% in aggregate principal amount of the
Securities of such series, or, in the case of any suit relating to or arising
under clause (4) or (8) of Section 5.1 (if the suit relates to Securities of
more than one but less than all series), 10% in aggregate principal amount of
Securities then Outstanding and affected thereby, or in the case of any suit
relating to or arising under clause (4) or (8) (if the suit under clause (4)
or (8) relates to all the Securities then Outstanding), (5), (6) or (7) of
Section 5.1, 10% in aggregate principal amount of all Securities then
Outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest or Additional
Amounts on any Security on or after the due date expressed in such Security or
any date fixed for redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default.
(1) With respect to the Holders of any series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a particular series and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured
or waived), the Trustee shall exercise with respect to such series of
Securities such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(2) 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
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving
of all such Events of Default with respect to such series which may have
occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely
by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture;
but in the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein unless specifically required by this Indenture).
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to be authorized
or within the discretion, rights or powers conferred upon it by this
Indenture;
(d) 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 pursuant to Section 5.9 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; and
(e) the Trustee shall not be required to take notice,
and shall not be deemed to have notice, of any default or Event of
Default hereunder, except Events of Default described in paragraphs (1),
(2) and (3) of Section 5.1 hereof, unless a Responsible Officer of the
Trustee shall be notified specifically of the default or Event of Default
on a written instrument or document delivered to it at its notice address
by the Issuer or by the Holders of at least 10% of the aggregate
principal amount of Securities then outstanding. In the absence of
delivery of notice satisfying those requirements, the Trustee may assume
conclusively that there is no default or Event of Default, except as
noted.
(3) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers.
The provisions of this Section 6.1 are in furtherance of and subject
to Section 315 of the Trust Indenture Act of 1939.
Section 6.2 Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 6.1:
(1) the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, note,
coupon, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(2) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officer's Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee
by a copy thereof certified by the secretary or an assistant secretary of the
Issuer;
(3) the Trustee may consult with legal counsel of its choice
or other experts, and the advice of such experts within the scope of such
expert's area of expertise or opinion of counsel with respect to legal matters
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or opinion.
(4) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred therein or thereby;
(5) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected by such Event of Default and then
Outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require indemnity satisfactory to it
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer
or, if paid by the Trustee or any predecessor Trustee, shall be repaid by the
Issuer upon demand;
(6) 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 such agent or attorney appointed
with due care by it hereunder;
(7) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder;
(8) the Trustee may request that the Issuer deliver a
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Certificate may be signed by any person authorized to sign an Officer's
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded;
(9) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Issuer, at
a time reasonably determined by the Issuer, personally or by agent or attorney
at the sole cost of the Issuer and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation; and
(10) in no event shall the Trustee be responsible or liable
for special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
Section 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of any
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
Section 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, Etc. The Trustee or any agent of the Issuer or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons with the same rights it would have if it were not the
Trustee or such agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
Section 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 3.3 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the
extent required by mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability for interest
on any moneys received by it hereunder.
Section 6.6 Compensation and Indemnification of Trustee and its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, such compensation as shall be
agreed in writing between the Issuer and the Trustee from time to time (which
shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as shall be determined to
have been caused by its own negligence, bad faith or willful misconduct. The
Issuer also covenants to indemnify the Trustee, each predecessor Trustee and
their respective directors, officers, employees, and agents (the
"indemnitees") for, and to hold the indemnitees harmless against, any and all
loss, liability, claim, damage, penalty, fine or expense, including taxes and
reasonable out-of-pocket expenses, reasonable incidental expenses and
reasonable legal fees and expenses incurred without negligence, bad faith or
willful misconduct on the indemnitees' part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts
hereunder and the indemnitees' duties hereunder, including the costs and
expenses of defending themselves against or investigating any claim, whether
asserted by the Issuer or any Holder or any other Person, or liability in
connection with the exercise or performance of the indemnitees' duties or
obligations hereunder. The obligations of the Issuer under this Section to
compensate and indemnify the indemnitees and to pay or reimburse the
indemnitees for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee in
accordance with Section 6.10 herein. Such additional indebtedness shall be a
senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit
of the Holders of particular Securities or Coupons, and the Securities are
hereby subordinated to such senior claim.
The Trustee shall have a lien prior to the Securities as to
all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.6, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(5) or Section
5.1(6), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The provisions of this section shall survive the termination
of this Indenture.
Section 6.7 Right of Trustee to Rely on Officer's Certificate, Etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence, bad faith
or willful misconduct on the part of the Trustee, be deemed to be conclusively
proved and established by an Officer's Certificate delivered to the Trustee,
and such certificate, in the absence of negligence, bad faith or willful
misconduct on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
Section 6.8 Indentures Not Creating Potential Conflicting Interests
for the Trustee. The following indentures are hereby specifically described
for the purposes of Section 310(b)(1) of the Trust Indenture Act of 1939: this
Indenture with respect to the Securities of any series.
Section 6.9 Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation or
banking association organized and doing business under the laws of the United
States of America or of any State or the District of Columbia having a
combined capital and surplus of at least $50,000,000, and which is authorized
under such laws to exercise corporate trust powers and is subject to
supervision or examination by Federal, State or District of Columbia
authority. Such corporation or banking association shall have a place of
business or an affiliate with a place of business in the Borough of Manhattan,
The City of New York if there be such a corporation or association in such
location willing to act upon reasonable and customary terms and conditions. If
such corporation or association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation or association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section
6.10.
The provisions of this Section 6.9 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of
1939.
Section 6.10 Resignation and Removal; Appointment of Successor
Trustee.
(1) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and (a) if
any Unregistered Securities of a series affected are then Outstanding, by
giving notice of such resignation to the Holders thereof, by publication, at
the Issuer's expense, at least once in an Authorized Newspaper in [the Borough
of Manhattan, The City of New York, (b) if any Unregistered Securities of a
series affected are then Outstanding, by mailing notice of such resignation to
the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939 at such
addresses as were so furnished to the Trustee and (c) by mailing notice of
such resignation to the Holders of then Outstanding Registered Securities of
each series affected at their addresses as they shall appear on the registry
books. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor Trustee or Trustees with respect to the applicable series
by written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee or Trustees. If no successor
Trustee shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may, at the Issuer's expense, petition any
court of competent jurisdiction for the appointment of a successor Trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself or herself and all others
similarly situated, petition any such court for the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor Trustee.
(2) In case at any time any of the following shall occur:
(a) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act of 1939 with
respect to any series of Securities after written request therefor by the
Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(b) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.9 and Section 310(a) of the
Trust Indenture Act of 1939 and shall fail to resign after written
request therefor by the Issuer or by any Securityholder; or
(c) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged bankrupt or
insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor Trustee for such
series by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor Trustee, or, subject to
the provisions of Section 315(e) of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may on behalf of himself or herself and
all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee with
respect to such series. Such court may thereupon, after such notice, if any,
as it may deem proper, remove the Trustee and appoint a successor Trustee.
(3) The Holders of a majority in aggregate principal amount
of the Securities of each series at the time Outstanding may at any time
remove the Trustee with respect to Securities of such series and appoint a
successor Trustee with respect to the Securities of such series by delivering
to the Trustee so removed, to the successor Trustee so appointed and to the
Issuer the evidence provided for in Section 7.1 of the action in that regard
taken by such Securityholders.
(4) Any resignation or removal of the Trustee with respect
to any series and any appointment of a successor Trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the successor Trustee as provided
in Section 6.11.
Section 6.11 Acceptance of Appointment by Successor Trustee. Any
successor Trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to all or any applicable series shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with
like effect as if originally named as Trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the successor
Trustee, upon payment of its charges then unpaid, the Trustee ceasing to act
shall, subject to Section 3.3, pay over to the successor Trustee all moneys at
the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor Trustee, the Issuer shall
execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor Trustee all such rights and
powers. Any Trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such Trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If a successor Trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor Trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts under separate indentures.
No successor Trustee with respect to any series of
Securities shall accept appointment as provided in this Section 6.11 unless at
the time of such acceptance such successor Trustee shall be qualified under
Section 310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 6.9.
Upon acceptance of appointment by any successor Trustee as
provided in this Section 6.11, the Issuer shall give notice thereof (1) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and (2) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939, by mailing
such notice to such Holders at such addresses as were so furnished to the
Trustee (and the Trustee shall make such information available to the Issuer
for such purpose) and (3) if any Registered Securities of a series affected
are then Outstanding, to the Holders thereof, by mailing such notice to such
Holders at their addresses as they shall appear on the registry books. If the
acceptance of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.10. If the Issuer fails to
give such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be given
at the expense of the Issuer.
Section 6.12 Merger, Amalgamation, Conversion, Consolidation or
Succession to Business of Trustee. Any corporation or national banking
association into which the Trustee may be merged or amalgamated or converted
or with which it may be consolidated, or any corporation or national banking
association resulting from any merger, amalgamation, conversion or
consolidation to which the Trustee shall be a party, or any corporation or
national banking association succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation or national banking association
shall be qualified under Section 310(b) of the Trust Indenture Act of 1939 and
eligible under the provisions of Section 6.9, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that
time any of the Securities of any series shall not have been authenticated,
any successor to the Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee; and
in all such cases such certificate shall have the full force which it is
anywhere in the Securities of such series or in this Indenture provided that
the certificate of the Trustee shall have; provided, that the right to adopt
the certificate of authentication of any predecessor Trustee or to
authenticate Securities of any series in the name of any predecessor Trustee
shall apply only to its successor or successors by merger, amalgamation,
conversion or consolidation.
Section 6.13 Preferential Collection of Claims Against the Issuer.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act of
1939, excluding any creditor relationship listed in Section 311(b) of the
Trust Indenture Act of 1939. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
Section 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument
in writing, appoint with the approval of the Issuer an authenticating agent
(the "Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee. Whenever
reference is made in this Indenture to the authentication and delivery of
Securities of any series by the Trustee or to 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 for such series
and a Certificate of Authentication executed on behalf of the Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States
of America or of any State, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and
subject to supervision or examination by Federal or State authority.
Any corporation into which any Authenticating Agent may be
merged, amalgamated or converted, or with which it may be consolidated, or any
corporation resulting from any merger, amalgamation or conversion or
consolidation to which any Authenticating Agent shall be a party, or any
corporation succeeding to all or substantially all of the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent. The
Trustee may at any time terminate the Authenticating Agent. Any Authenticating
Agent may at any time, and if it shall cease to be eligible, shall resign by
giving written notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect
to one or more series of Securities, the Trustee shall upon receipt of an
Issuer Order appoint a successor Authenticating Agent and the Issuer shall
provide notice of such appointment to all Holders of Securities of such series
in the manner and to the extent provided in Section 11.4. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent.
The Issuer agrees to pay to the Authenticating Agent for such series from time
to time reasonable compensation. The Authenticating Agent for the Securities
of any series shall have no responsibility or liability for any action taken
by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to
any Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this Article.
Section 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Securityholder or his or her agent or proxy may be proved in the
following manner:
(1) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to
him or her the execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer. Where such
execution is by or on behalf of any legal entity other than an individual,
such certificate or affidavit shall also constitute sufficient proof of the
authority of the person executing the same.
(2) The fact of the holding by any Holder of an Unregistered
Security of any series, and the identifying number of such Security and the
date of his or her holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company, bank, banker or
recognized securities dealer wherever situated satisfactory to the Trustee, if
such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer
by the person named in such certificate. Any such certificate may be issued in
respect of one or more Unregistered Securities of one or more series specified
therein. The holding by the person named in any such certificate of any
Unregistered Securities of any series specified therein shall be presumed to
continue for a period of one year from the date of such certificate unless at
the time of any determination of such holding (a) another certificate bearing
a later date issued in respect of the same Securities shall be produced, or
(b) the Securities of such series specified in such certificate shall be
produced by some other person, or (c) the Securities of such series specified
in such certificate shall have ceased to be Outstanding. Subject to Sections
6.1 and 6.2, the fact and date of the execution of any such instrument and the
amount and numbers of Securities of any series held by the person so executing
such instrument and the amount and numbers of any Security or Securities for
such series may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for such series or in any
other manner which the Trustee for such series may deem sufficient.
(3) In the case of Registered Securities, the ownership of
such Securities shall be proved by the Security register or by a certificate
of the Security registrar.
The Issuer may set a record date for purposes of determining
the identity of Holders of Registered Securities of any series entitled to
vote or consent to any action referred to in Section 7.1, which record date
may be set at any time or from time to time by notice to the Trustee, for any
date or dates (in the case of any adjournment or reconsideration) not more
than [60] days nor less than [five] days prior to the proposed date of such
vote or consent, and thereafter, notwithstanding any other provisions hereof,
with respect to Registered Securities of any series, only Holders of
Registered Securities of such series of record on such record date shall be
entitled to so vote or give such consent or revoke such vote or consent.
Section 7.3 Holders to Be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register for
such series as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account
of the principal of and, subject to the provisions of this Indenture, interest
on such Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and the Holder
of any Coupon as the absolute owner of such Unregistered Security or Coupon
(whether or not such Unregistered Security or Coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all other
purposes and neither the Issuer, the Trustee, nor any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary. All such payments
so made to any such person, or upon his or her order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Unregistered Security or Coupon.
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only Securities which a Responsible
Officer of the Trustee actually knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officer's Certificate listing and
identifying all Securities, if any, known by the Issuer to be owned or held by
or for the account of any of the above-described Persons; and, subject to
Sections 6.1 and 6.2, the Trustee shall be entitled to accept such Officer's
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of
any such determination.
Section 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the [Corporate Trust Office]
and upon proof of holding as provided in this Article, revoke such action so
far as concerns such Security. Except as aforesaid any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of
Securityholders.
(1) In addition to any supplemental indenture otherwise
authorized by this Indenture, the Issuer, when authorized by a resolution of
its Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order),
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto, which comply with the Trust Indenture Act
of 1939, as then in effect, without the consent of the Holders, for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another Person to the
Issuer, or successive successions, and the assumption by the successor
Person of the covenants, agreements and obligations of the Issuer
pursuant to Article IX;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and the
Trustee shall consider to be for the protection of the Holders of
Securities or Coupons, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement
of all or any of the several remedies provided in this Indenture as
herein set forth; provided, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture
may provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default
or may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event
of Default;
(d) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein or
in any supplemental indenture, or to make any other provisions as the
Issuer may deem necessary or desirable, provided that no such action
shall materially adversely affect the interests of the Holders of the
Securities or Coupons;
(e) to establish the forms or terms of Securities of
any series or of the Coupons appertaining to such Securities as permitted
by Sections 2.1 and 2.3;
(f) 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 6.11; and
(g) to make any other changes that do not materially
adversely affect holders of the affected Securities.
(2) The Trustee is hereby authorized to join with the Issuer
in the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee 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.
(3) Any supplemental indenture authorized by the provisions
of this Section may be executed without the consent of the Holders of any of
the Securities at the time outstanding, notwithstanding any of the provisions
of Section 8.2.
Section 8.2 Supplemental Indentures With Consent of Securityholders.
(1) With the consent (evidenced as provided in Article VII)
of the Holders of not less than a majority in aggregate principal amount of
the Securities at the time Outstanding of all series affected by such
supplemental indenture (voting as one class), the Issuer, when authorized by a
resolution of its Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order), and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto, which comply with the Trust
Indenture Act of 1939, as then in effect, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Holders of the Securities of each such series or of
the Coupons appertaining to such Securities; provided, that no such
supplemental indenture shall (a) extend the final maturity of any then issued
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon or reduce any amount payable on
redemption thereof, or make the principal thereof (including any amount in
respect of original issue discount), or interest thereon or Additional Amounts
payable in any coin or currency other than that provided in such Securities
and any Coupons thereon or in accordance with the terms thereof, or reduce the
amount of the principal of a then issued Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity thereof pursuant
to Section 5.1 or the amount thereof provable in bankruptcy pursuant to
Section 5.2, or impair or affect the right of any Securityholder to institute
suit for the payment thereof or, if such Securities provide therefor, any
right of repayment at the option of the Securityholder, in each case without
the consent of the Holder of each Security so affected, or (b) reduce the
percentage in principal amount of then issued Securities of any series, the
consent of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of each Security so affected.
(2) A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of Holders of Securities of such
series, or of Coupons appertaining to such Securities, with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or of the Coupons
appertaining to such Securities.
(3) Upon the request of the Issuer, accompanied by a copy of
a resolution of the Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order) certified by [the secretary or an assistant secretary] of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders of the
Securities as aforesaid and other documents, if any, required by Section 7.1,
the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
(4) It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
(5) Promptly after the execution by the Issuer and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall give notice thereof (a) if any Registered
Securities of a series affected thereby are then Outstanding, to the Holders
thereof by mailing a notice thereof by first-class mail to such Holders at
their addresses as they shall appear on the Security register, (b) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313 (c)(2) of the Trust Indenture Act of 1939, by mailing
a notice thereof by first-class mail to such Holders at such addresses as were
so furnished to the Trustee and (c) if any Unregistered Securities of a series
affected thereby are then Outstanding, to all Holders thereof, by publication
of a notice thereof at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and in each case such notice shall set forth
in general terms the substance of such supplemental indenture. Any failure of
the Issuer to give such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
Section 8.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Issuer and the Holders of
Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 8.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall be provided with, and shall be
fully protected in relying upon, an Officer's Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed
pursuant to this Article VIII complies with the applicable provisions of this
Indenture.
Section 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
Section 8.6 Subordination Unimpaired. This Indenture may not be
amended to after the subordination of any of the Outstanding Securities
without the written consent of each holder of Senior Indebtedness then
outstanding that would be adversely affected thereby.
Section 8.7 Conformity with Trust Indenture Act of 1939. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act of 1939 as then in effect.
ARTICLE IX
CONSOLIDATION, MERGER, AMALGAMATION, SALE OR CONVEYANCE
Section 9.1 Issuer May Consolidate, Etc., Only on Certain Terms. The
Issuer shall not consolidate with or merge or amalgamate into another Person
or sell other than for cash all or substantially all its assets to another
Person, or purchase all or substantially all the assets of another Person,
unless:
(1) either the Issuer is the continuing Person, or the
successor Person (if other than the Issuer) expressly assumes by supplemental
indenture the obligations and covenants evidenced by the Indenture and the
Securities (in which case, the Issuer will be discharged therefrom),
(2) immediately thereafter, the Issuer or the successor
Person (if other than the Issuer) would not be in default in the performance
of any covenant or condition contained herein, and
(3) a specified Officers' Certificate and an Opinion of
Counsel are delivered to the Trustee, each (a) stating that such transaction
and any supplemental indenture pertaining thereto, comply with Article VIII
and Article IX, respectively, and (b) otherwise complying with Section 11.5.
Section 9.2 Successor Substituted for the Issuer. Upon any
consolidation of the Issuer with, or merger or amalgamation of the Issuer
into, any other Person or any conveyance or transfer of the properties and
assets of the Issuer substantially as an entirety in accordance with Section
9.1, the successor Person formed by such consolidation or into which the
Issuer is merged or amalgamated or to which such conveyance or transfer is
made shall succeed to, and be substituted for, and may exercise every right
and power of, the Issuer under this Indenture with the same effect as if such
successor Person had been named as the Issuer herein, and thereafter, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Termination of Issuer's Obligations Under the Indenture.
(1) This Indenture shall upon an Issuer Order cease to be of
further effect with respect to Securities of or within any series and any
Coupons appertaining thereto (except as to any surviving rights of
registration of transfer or exchange of such Securities and replacement of
such Securities which may have been lost, stolen or mutilated as herein
expressly provided for) and the Trustee, at the expense of the Issuer, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities and any Coupons appertaining thereto
when
(a) either
(i) all such Securities previously authenticated
and delivered and all Coupons appertaining thereto (other than (A)
such Coupons appertaining to Unregistered Securities surrendered in
exchange for Registered Securities and maturing after such exchange,
surrender of which is not required or has been waived as provided in
Section 2.8, (B) such Securities and Coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9, (C) such Coupons appertaining to
Unregistered Securities called for redemption and maturing after the
date fixed for redemption thereof, surrender of which has been
waived as provided in Section 12.3 and (D) such Securities and
Coupons for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust as provided in
Section 3.3) have been delivered to the Trustee for cancellation; or
(ii) all Securities of such series and, in the
case of (X) or (Y) below, all Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation (X) have
become due and payable, or (Y) will become due and payable within
one year, or (Z) if redeemable at the option of the Issuer, 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 Issuer, and
the Issuer, in the case of (X), (Y) or (Z) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount in the currency or currencies or
currency unit or units in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on
such Securities and such Coupons not theretofore delivered to the
Trustee for cancellation, for principal, premium, if any, and
interest and Additional Amounts, with respect thereto, to the date
of such deposit (in the case of Securities which have become due and
payable) or maturity date or redemption date, as the case may be;
(b) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer; and
(c) the Issuer 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.
(2) Notwithstanding the satisfaction and discharge of this
Indenture, the obligation of the Issuer to the Trustee and any predecessor
Trustee under Section 6.6, the obligations of the Issuer to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to (1)(a)(ii) of this Section, the obligations of the Trustee
under Section 10.2 and the last paragraph of Section 3.3 shall survive.
Section 10.2 Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 3.3, all money deposited with the Trustee
pursuant to Section 10.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the Coupons and this
Indenture, to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent) as the Trustee may
determine, to the Persons entitled thereto of the principal, premium, if any,
and any interest or Additional Amounts for whose payment such money has been
deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
Section 10.3 Applicability of Defeasance Provisions; Issuer's Option
to Effect Defeasance or Covenant Defeasance. If pursuant to Section 2.3
provision is made for either or both of (1) defeasance of the Securities of or
within a series under Section 10.4 or (2) covenant defeasance of the
Securities of or within a series under Section 10.5, then the provisions of
such Section or Sections, as the case may be, together with the provisions of
Sections 10.6 through 10.9 inclusive, with such modifications thereto as may
be specified pursuant to Section 2.3 with respect to any Securities, shall be
applicable to such Securities and any Coupons appertaining thereto, and the
Issuer may at its option by or pursuant to Board Resolution, at any time, with
respect to such Securities and any Coupons appertaining thereto, elect to have
Section 10.4 (if applicable) or Section 10.5 (if applicable) be applied to
such Outstanding Securities and any Coupons appertaining thereto upon
compliance with the conditions set forth below in this Article.
Section 10.4 Defeasance and Discharge. Upon the Issuer's exercise of
the option specified in Section 10.3 applicable to this Section with respect
to the Securities of or within a series, the Issuer shall be deemed to have
been discharged from its obligations with respect to such Securities and any
Coupons appertaining thereto on and after the date the conditions set forth in
Section 10.6 are satisfied (hereinafter "defeasance"). For this purpose, such
defeasance means that the Issuer shall be deemed to have paid and discharged
the entire indebtedness represented by such Securities and any Coupons
appertaining thereto which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 10.7 and the other Sections of this Indenture
referred to in clause (2) of this Section, and to have satisfied all its other
obligations under such Securities and any Coupons appertaining thereto and
this Indenture insofar as such Securities and any Coupons appertaining thereto
are concerned (and the Trustee, at the expense of the Issuer, shall on an
Issuer Order execute proper instruments acknowledging the same), except the
following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities and any Coupons
appertaining thereto to receive, solely from the trust funds described in
Section 10.6(1) and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest and Additional
Amounts, if any, on such Securities or any Coupons appertaining thereto when
such payments are due; (2) the Issuer's obligations with respect to such
Securities under Sections 2.8, 2.9, 3.2 and 3.3 and with respect to the
payment of Additional Amounts, if any, payable with respect to such Securities
as specified pursuant to Section 2.3; (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article X. Subject to
compliance with this Article X, the Issuer may exercise its option under this
Section notwithstanding the prior exercise of its option under Section 10.5
with respect to such Securities and any Coupons appertaining thereto.
Following a defeasance, payment of such Securities may not be accelerated
because of an Event of Default.
Section 10.5 Covenant Defeasance. Upon the Issuer's exercise of the
option specified in Section 10.3 applicable to this Section with respect to
any Securities of or within a series, the Issuer shall be released from its
obligations under Section 9.1 and 3.5 and, if specified pursuant to Section
2.3, its obligations under any other covenant with respect to such Securities
and any Coupons appertaining thereto on and after the date the conditions set
forth in Section 10.6 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 Sections 9.1 and Article III or such other 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
Securities and any Coupons appertaining thereto, the Issuer 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 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 5.1(4) or (8) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such
Securities and any Coupons appertaining thereto shall be unaffected thereby.
Section 10.6 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 10.4 or Section
10.5 to any Securities of or within a series and any Coupons appertaining
thereto:
(1) The Issuer shall have deposited or caused to be
deposited irrevocably with the Trustee (or another Trustee satisfying the
requirements of Section 6.9 who shall agree to comply with, and shall be
entitled to the benefits of, the provisions of Sections 10.3 through 10.9
inclusive and the last paragraph of Section 3.3 applicable to the Trustee, for
purposes of such Sections also a "Trustee") as trust funds in trust for the
purpose of making the payments referred to in clauses (X) and (Y) of this
Section 10.6(1), specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any Coupons appertaining
thereto, with instructions to the Trustee as to the application thereof, (a)
money in an amount (in such currency, currencies or currency unit or units in
which such Securities and any Coupons appertaining thereto are then specified
as payable at maturity), or (b) if Securities of such series are not subject
to repayment at the option of Holders, U.S. Government Obligations which
through the payment of interest and principal in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment referred to in clause (X) or (Y) of this Section 10.6(1), money in
an amount or (c) a combination thereof in an amount sufficient, in the opinion
of a nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to pay and discharge,
(X) the principal of, premium, if any, and interest and Additional Amounts, if
any, on Securities and any Coupons appertaining thereto on the maturity of
such principal or installment of principal or interest and (Y) any mandatory
sinking fund payments applicable to such Securities on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and such Securities and any Coupons appertaining thereto. Before such a
deposit the Issuer may make arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates in accordance with Article
XII which shall be given effect in applying the foregoing.
(2) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default or Event of Default
under, this Indenture or result in a breach or violation of, or constitute a
default under, any other material agreement or instrument to which the Issuer
is a party or by which it is bound.
(3) In the case of an election under Section 10.4, the
Issuer shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel to the effect that (a) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling, or (b)
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 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 amount and in the same manner and at
the same times, as would have been the case if such deposit, defeasance and
discharge had not occurred.
(4) In the case of an election under Section 10.5, the
Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such 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.
(5) The Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 10.4 or the covenant
defeasance under Section 10.5 (as the case may be), including those contained
in this Section 10.6 other than the 90 day period specified in Section
10.6(7), have been complied with.
(6) This Issuer shall have delivered to the Trustee an
Officer's 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.
(7) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 5.1(5) and
(6), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until
after such 90th day).
(8) Such defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940 unless such trust
shall be registered under such Act or exempt from registration thereunder.
(9) 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 Issuer in connection therewith as
contemplated by Section 2.3.
Section 10.7 Deposited Money and U.S. Government Obligations to be
Held in Trust. Subject to the provisions of the last paragraph of Section 3.3,
all money and U.S. Government Obligations (or other property as may be
provided pursuant to Section 2.3) (including the proceeds thereof) deposited
with the Trustee pursuant to Section 10.6 in respect of any Securities of any
series and any Coupons 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 Issuer 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, 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.
Section 10.8 Repayment to Issuer. The Trustee (any paying agent)
shall promptly pay to the Issuer upon Issuer Order any excess money or
securities held by them at any time.
Section 10.9 Indemnity For U.S. Government Obligations. The Issuer
shall pay, and shall indemnify the Trustee against, any tax, fee or other
charge imposed on or assessed against U.S. Government Obligations deposited
pursuant to this Article or the principal and interest and any other amount
received on such U.S. Government Obligations.
Section 10.10 Reimbursement. If the Trustee or the paying agent is
unable to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or government
authority enjoining, restraining or otherwise prohibiting such application,
then the obligations under this Indenture and such Securities from which the
Issuer has been discharged or released pursuant to Section 10.4 or 10.5 shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article with respect to such Securities, until such time as the Trustee or
paying agent is permitted to apply all money held in trust pursuant to Section
10.7 with respect to such Securities in accordance with this Article;
provided, however, that if the Issuer makes any payment of principal of or any
premium or interest or Additional Amounts on any such Security following such
reinstatement of its obligations, the Issuer shall be subrogated to the rights
(if any) of the Holders of such Securities to receive such payment from the
money so held in trust.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Shareholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
shareholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
Section 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than
the parties hereto and their successors and the Holders of the Securities or
Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities or Coupons, if any.
Section 11.3 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
Section 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer shall be in writing
(which may be by facsimile) and may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to ▇▇▇▇▇▇.▇▇▇ India Limited, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇.▇. First Cross Road, Mahim (West), Mumbai 400 016, Republic of
India, Attn: [General Counsel]. Any notice, direction, request or demand by
the Issuer or any Holder of Securities or Coupons to or upon the Trustee shall
be deemed to have been sufficiently given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Trustee is filed by the Trustee with
the Issuer) to Citibank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust Administration.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder entitled thereto, at his or her last address
as it appears in the Security register. In any case where notice to such
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 11.5 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent 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 have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture,
except as required under Section 3.4, and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this
Indenture shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition, (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 such person, he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition
has been complied with and (4) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his or her certificate, statement or opinion may be based
as aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate, statement or opinion of counsel
may be based, insofar as it relates to factual matters, information with
respect to which is in the possession of the Issuer, upon the certificate,
statement or opinion of or representations by an officer or officers of the
Issuer, unless such counsel actually knows that the certificate, statement or
opinion or representations with respect to the matters upon which his or her
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants in the employ of the Issuer, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his or her
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series
or any Coupons appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no interest
shall accrue for the period after such date.
Section 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by, or with
another provision (an "incorporated provision") included in this Indenture by
operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of
1939, such imposed duties or incorporated provision shall control.
Section 11.8 New York Law to Govern; Waiver of Jury Trial. This
Indenture and each Security and Coupon shall be deemed to be a contract under
the laws of the [State of New York], and for all purposes shall be construed
in accordance with the laws of such State, except as may otherwise be required
by mandatory provisions of law.
EACH OF THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 11.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 11.11 Securities in a Foreign Currency or in ECU. Unless
otherwise specified in an Officer's Certificate delivered pursuant to Section
2.3 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars (including ECUs), then
the principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate.
For purposes of this Section 11.11, Market Exchange Rate shall mean the noon
Dollar buying rate in New York City for cable transfers of that currency as
published by the Federal Reserve Bank of New York; provided, however, in the
case of ECUs, Market Exchange Rate shall mean the rate of exchange determined
by the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities (such
publication or any successor publication, the "Journal"). If such Market
Exchange Rate is not available for any reason with respect to such currency,
the Trustee shall use, in its sole discretion and without liability on its
part, such quotation of the Federal Reserve Bank of New York or, in the case
of ECUs, the rate of exchange as published in the Journal], as of the most
recent available date, or quotations or, in the case of ECUs, rates of
exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question, which for purposes of the ECU
shall be Brussels, Belgium, or such other quotations or, in the case of ECU,
rates of exchange as the Trustee shall deem appropriate. The provisions of
this paragraph shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other than Dollars
in connection with any action taken by Holders of Securities pursuant to the
terms of this Indenture including without limitation any determination
contemplated in Section 5.1(7).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Issuer and all Holders.
Section 11.12 Judgment Currency. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (1) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of, any premium, interest or Additional
Amounts on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a Business Day, then,
to the extent permitted by applicable law, the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the Business Day preceding the day on which final unappealable
judgment is entered and (2) its obligations under this Indenture to make
payments in the Required Currency (a) shall not be discharged or satisfied by
any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (1)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in
the actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (b) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering
in the Required Currency the amount, if any, by which such actual receipt
shall fall short of the full amount of the Required Currency so expressed to
be payable and (c) shall not be affected by judgment being obtained for any
other sum due under this Indenture.
Section 11.13 Separability Clause. If any provision of this Indenture
or of the Securities, or the application of any such provision to any Person
or circumstance, shall be held to be invalid, illegal or unenforceable, the
remainder of this Indenture or of the Securities, or the application of such
provision to Persons or circumstances other than those as to whom or which it
is invalid, illegal or unenforceable, shall not in any way be affected or
impaired thereby.
Section 11.14 Force Majeure. In no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation strikes, work
stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.
Section 11.15 Submission to Jurisdiction. The Company agrees that any
judicial proceedings instituted in relation to any matter arising under this
Indenture or the Securities may be brought in [any United States Federal or
New York State court sitting in the Borough of Manhattan, The City of New
York, New York] to the extent that such court has subject matter jurisdiction
over the controversy, and, by execution and delivery of this Indenture, the
Company hereby irrevocably accepts, generally and unconditionally, the
jurisdiction of the aforesaid courts, acknowledges their competence and
irrevocably agrees to be bound by any judgment rendered in such proceeding.
The Company also irrevocably and unconditionally waives for the benefit of the
Trustee and the Holders of the Securities any immunity from jurisdiction and
any immunity from legal process (whether through service or notice, attachment
prior to judgment, attachment in the aid of execution, execution or otherwise)
in respect of this Indenture. The Company hereby irrevocably designates and
appoints for the benefit of the Trustee and the Holders of the Securities for
the term of this Indenture [CT Corporation System, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇.▇▇▇ U.S. address?], as its agent to receive on
its behalf service of all process (with a copy of all such service of process
to be delivered to ▇▇▇▇▇▇.▇▇▇ India Limited ▇▇▇▇▇▇▇▇▇ Engineering Estate, 1st
Floor, ▇.▇. First Cross Road, Mahim (West), Mumbai 400 016, Republic of India,
Attention: General Counsel) brought against it with respect to any such
proceeding in any such court in [The City of New York], such service being
hereby acknowledged by the Company to be effective and binding service on it
in every respect whether or not the Company shall then be doing or shall have
at any time done business in [New York]. Such appointment shall be irrevocable
so long as any of the Securities or the obligations of the Company hereunder
remain outstanding until the appointment of a successor by the Company and
such successor's acceptance of such appointment. Upon such acceptance, the
Company shall notify the Trustee in writing of the name and address of such
successor. The Company further agrees for the benefit of the Trustee and the
Holders of the Securities to take any and all action, including the execution
and filing of any and all such documents and instruments, as its agent in full
force and effect so long as any of the Securities or the obligations of the
Company hereunder shall be outstanding. The Trustee shall not be obligated and
shall have no responsibility with respect to any failure by the Company to
take any such action. Nothing herein shall affect the right to serve process
in any other manner permitted by any law or limit the right of the Trustee or
any Holder to institute proceedings against the Company in the courts of any
other jurisdiction or jurisdictions.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
Section 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities of such series at their last addresses as they
shall appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of
the Trust Indenture Act of 1939 shall be given at the Issuer's expense by
mailing notice of such redemption, by first class mail, postage prepaid, at
least 30 days and not more than 60 prior to the date fixed for redemption, to
such Holders at such addresses as were so furnished to the Trustee (and, in
the case of any such notice given by the Issuer, the Trustee shall make such
information available to the Issuer for such purpose). Notice of redemption to
all other Holders of Unregistered Securities shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New York], in
each case, once in each of three successive calendar weeks, the first
publication to be not less than 30 nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall identify
the securities to be redeemed (including CUSIP numbers), shall specify, the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender
of such Securities and, in the case of Securities with Coupons attached
thereto, of all Coupons appertaining thereto maturing after the date fixed for
redemption, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be redeemed in
part only the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof
will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee (provided it receives the Officer's
Certificate below) in the name and at the expense of the Issuer.
On or before 10:00 a.m., New York City time, the redemption
date specified in the notice of redemption given as provided in this Section,
the Issuer will deposit with the Trustee or with one or more paying agents
(or, if the Issuer is acting as its own paying agent, set aside, segregate and
hold in trust as provided in Section 3.3) an amount of money sufficient to
redeem on the redemption date all the Securities of such series so called for
redemption at the appropriate redemption price, together with accrued interest
to the date fixed for redemption. The Issuer will deliver to the Trustee at
least 75 days prior to the date fixed for redemption an Officer's Certificate
stating the aggregate principal amount of Securities to be redeemed. In case
of a redemption at the election of the Issuer prior to the expiration of any
restriction on such redemption, the Issuer shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officer's Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any
series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which
has been or is to be redeemed.
Section 12.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in Sections 3.3
and 6.5, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Securities except
the right to receive the redemption price thereof and unpaid interest and
Additional Amounts to the date fixed for redemption. On presentation and
surrender of such Securities at a place of payment specified in said notice,
together with all Coupons, if any, appertaining thereto maturing after the
date fixed for redemption, said Securities or the specified portions thereof
shall be paid and redeemed by the Issuer at the applicable redemption price,
together with interest accrued thereon to the date fixed for redemption;
provided that payment of interest becoming due on or prior to the date fixed
for redemption shall be payable in the case of Securities with Coupons
attached thereto, to the Holders of the Coupons for such interest upon
surrender thereof, and in the case of Registered Securities, to the Holders of
such Registered Securities registered as such on the relevant record date
subject to the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons maturing
after the date fixed for redemption, such Security may be redeemed after
deducting from the redemption price any 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 Issuer 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 interest
represented by Coupons shall be payable as provided in Section 2.9 and, unless
otherwise specified as contemplated by Section 2.3, only upon presentation and
surrender of those Coupons.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
Section 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and
certificate number in an Officer's Certificate delivered to the Trustee at
least [40] days prior to the last date on which notice of redemption may be
given as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such written statement as directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer.
Section 12.5 Mandatory and Optional Sinking Funds.
(1) The minimum amount of any sinking fund payment provided
for by the terms of the 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 the Securities of any series is herein
referred to as an "optional sinking fund payment". The date on which a sinking
fund payment is to be made is herein referred to as the "sinking fund payment
date".
(2) In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of Securities in cash, the
Issuer may at its option (a) deliver to the Trustee Securities of such series
theretofore purchased or otherwise acquired (except upon redemption pursuant
to the mandatory sinking fund) by the Issuer or receive credit for Securities
of such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
(3) On or before the 60th day next preceding each sinking
fund payment date for any series, the Issuer will deliver to the Trustee an
Officer's Certificate (which need not contain the statements required by
Section 11.5) (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit
of Securities of such series and the basis for such credit, (b) stating that
none of the Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Issuer intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the Issuer intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee
with such Officer's Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officer's Certificate shall be irrevocable
and upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure of
the Issuer, on or before any such 60th day, to deliver such Officer's
Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of
such series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this Section.
(4) If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding sinking fund
payment date plus any unused balance of any preceding sinking fund payments
made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign
Currency or ECU) or a lesser sum in Dollars (or the equivalent thereof in any
Foreign Currency or ECU) if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 (or the
equivalent thereof in any Foreign Currency or ECU) or less and the Issuer
makes no such request then it shall be carried over until a sum in excess of
$50,000 (or the equivalent thereof in any Foreign Currency or ECU) is
available. The Trustee shall select, in the manner provided in Section 12.2,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and
shall (if requested in writing by the Issuer) inform the Issuer of the serial
numbers of the Securities of such series (or portions thereof) so selected.
Securities shall be excluded from eligibility for redemption under this
Section if they are identified by registration and certificate number in an
Officer's Certificate delivered to the Trustee at least 60 days prior to the
sinking fund payment date as being owned of record and beneficially by, and
not pledged or hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such Officer's Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect
provided in Section 12.3) for the redemption of Securities of such series in
part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall
be added to the next cash sinking fund payment for such series and, together
with such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of
the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
(5) On or before each sinking fund payment date, the Issuer
shall pay to the Trustee in cash or shall otherwise provide for the payment of
all interest accrued and Additional Amounts to the date fixed for redemption
on Securities to be redeemed on the next following sinking fund payment date.
(6) The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event
of Default, be deemed to have been collected under Article V and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date
in accordance with this Section to the redemption of such Securities.
ARTICLE XIII
SUBORDINATION
Section 13.1 Agreement to Subordinate. The Issuer, for itself, its
successors and assigns, covenants and agrees, and each Holder of a Security or
Coupon, by its acceptance thereof, likewise covenants and agrees, that the
payment of the principal of and interest and Additional Amounts on, each and
all of the Securities and any Coupons is hereby expressly subordinated, to the
extent and in the manner hereinafter in this Article 13 set forth, in right of
payment to the prior payment in full of all Senior Indebtedness.
Section 13.2 Rights of Senior Indebtedness in the Event of
Insolvency, Etc., of the Issuer.
(a) In the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation, reorganization or other
similar proceedings in connection therewith, relative to the Issuer or to
its creditors, as such, or to its property, and in the event of any
proceedings for voluntary liquidation, dissolution or other winding up of
the Issuer, whether or not involving insolvency or bankruptcy, and in the
event of any execution sale, then the holders of Senior Indebtedness
shall be entitled to receive payment in full of principal thereof and
interest due thereon (including, without limitation, except to the
extent, if any, prohibited by mandatory provisions of law, post-petition
interest in any such proceedings) and Additional Amounts in money or
money's worth of all Senior Indebtedness before the Holders are entitled
to receive any payment on account of the principal of or interest on or
Additional Amounts with respect to the indebtedness evidenced by the
Securities or of the Coupons, and to that end the holders of Senior
Indebtedness shall be entitled to receive for application in payment
thereof any payment or distribution of any kind or character, whether in
cash or property or securities, which may be payable or deliverable in
connection with any such proceedings or sale in respect of the principal
of or interest or Additional Amounts on the Securities or Coupons other
than securities of the Issuer as reorganized or readjusted or securities
of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in this Article XIII with respect to the
Securities or Coupons, to the payment of all indebtedness of the nature
of Senior Indebtedness, provided that the rights of the holders of the
Senior Indebtedness are not altered by such reorganization or
readjustment;
(b) In the event and during the continuation of any
default in payment of any Senior Indebtedness or if any event of default,
as therein defined, shall exist under any Senior Indebtedness or any
agreement pursuant to which any Senior Indebtedness is issued, no payment
of the principal of or interest on the Securities or Coupons shall be
made and the Issuer covenants that it will, upon ascertaining any such
default or event of default, provide written notice to the Trustee of
such default or event of default;
(c) In the event that the Securities of any series are
declared due and payable before their expressed maturity because of the
occurrence of an Event of Default (under circumstances when the
provisions of Subsection (a) of this Section 13.2 shall not be
applicable), the holders of all Senior Indebtedness shall be entitled to
receive payment in full in money or money's worth of such Senior
Indebtedness before such Holders are entitled to receive any payment on
account of the principal of or interest on the Securities or Coupons; and
(d) No holder of Senior Indebtedness shall be
prejudiced in his or her right to enforce subordination of the Securities
or Coupons by any act or failure to act on the part of the Issuer.
Section 13.3 Payment Over of Proceeds Received on Securities. In the
event that, notwithstanding the provisions of Section 13.2, any payment or
distribution of assets of the Issuer of any kind or character, whether in
cash, property or securities (other than securities of the Issuer as
reorganized or readjusted or securities of the Issuer or any other corporation
provided for by a plan of reorganization or readjustment the payment of which
is subordinate, at least to the extent provided in this Article XIII with
respect to the Securities or Coupons, to the payment of all indebtedness of
the nature of Senior Indebtedness, provided that the rights of the holders of
the Senior Indebtedness are not altered by such reorganization or
readjustment) shall be received by the Holders or by the Trustee for their
benefit in connection with any proceedings or sale referred to in Subsection
(a) of Section 13.2 before all Senior Indebtedness is paid in full in money or
money's worth, such payment or distribution shall be paid over to the holders
of such Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of
all Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full in money or money's worth, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness.
From and after the payment in full in money or money's worth
of all Senior Indebtedness, the Holders (together with the holders of any
other indebtedness of the Issuer which is subordinate in right of payment to
the payment in full of all Senior Indebtedness, which is not subordinate in
right of payment to the Securities or Coupons and which by its terms grants
such right of subrogation to the holder thereof) shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets or securities of the Issuer applicable to the Senior
Indebtedness until the Securities and any Coupons shall be paid in full, and,
for the purposes of such subrogation, no such payments or distributions to the
holders of Senior Indebtedness of assets or securities, which otherwise would
have been payable or distributable to Holders, shall, as between the Issuer,
its creditors other than the holders of Senior Indebtedness, and the Holders,
be deemed to be a payment by the Issuer to or on account of the Senior
Indebtedness, it being understood that the provisions of this Article XIII are
and are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of the Senior Indebtedness, on the
other hand, and nothing contained in this Article XIII or elsewhere in this
Indenture or in the Securities or Coupons is intended to or shall impair as
between the Issuer, its creditors other than the holders of Senior
Indebtedness, and the Holders, the obligation of the Issuer, which is
unconditional and absolute, to pay to the Holders the principal of and
interest on the Securities or Coupons as and when the same shall become due
and payable in accordance with their terms, or to affect the relative rights
of the Holders and creditors of the Issuer other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee
or the holder of any Security or Coupon from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture subject to the
rights of the holders of Senior Indebtedness, under Section 13.2, to receive
cash, property or securities of the Issuer otherwise payable or deliverable to
the holders of the Securities or Coupons.
Upon any distribution or payment in connection with any
proceedings or sale referred to in Subsection (a) of Section 13.2, the
Trustee, subject as between the Trustee and the Holders to the provisions of
Sections 6.1 and 6.2 hereof, shall be entitled to rely upon a certificate of
the liquidating trustee or agent or other Person making any distribution or
payment to the Trustee for the purpose of ascertaining the holders of Senior
Indebtedness entitled to participate in such payment or distribution, the
amount of such Senior Indebtedness or the amount payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto
or to this Article XIII. 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 Indebtedness to participate in any payment or
distribution pursuant to this Section 13.3, 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, as to the extent to
which such Person is entitled to participate in such payment or distribution,
and as to other facts pertinent to the rights of such Person under this
Section 13.3, 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.
The Trustee, however, 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 pay over or distribute to
Holders or the Issuer or any other Person moneys or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of Article XIII of
this Indenture or otherwise. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.
Section 13.4 Payments to Holders. Nothing contained in this Article
XIII or elsewhere in this Indenture, or in any of the Securities or in any
Coupon, shall prevent at any time, (1) the Issuer from making payments at any
time of principal of or interest or Additional Amounts on the Securities or
Coupons, except under the conditions described in Section 13.2 or during the
pendency of any proceedings or sale therein referred to, provided, however,
that payments of principal of or interest or Additional Amounts on the
Securities or Coupons shall only be made by the Issuer within three business
days of the due dates for such payments or (2) the application by the Trustee
of any moneys deposited with it hereunder to the payment of or on account of
the principal of or interest on the Securities or Coupons, if at the time of
such deposit the Trustee did not have written notice in accordance with
Section 13.6 of any event prohibiting the making of such deposit by the Issuer
or if in the event of redemption, the Trustee did not have such written notice
prior to the time that the notice of redemption pursuant to Section 12.2 was
given (which notice of redemption shall in no event be given more than 60 days
prior to the date fixed for redemption).
Section 13.5 Holders of Securities Authorize Trustee to Effectuate
Subordination of Securities. Each Holder by his or her acceptance of a
Security or Coupon authorizes and directs the Trustee on his or her behalf to
take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination as provided in this Article XIII and appoints the
Trustee as attorney-in-fact for any and all such purposes, including, in the
event of any dissolution, winding up, liquidation or reorganization of the
Issuer (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Issuer, the immediate filing of
a claim for the unpaid balance of such Holder's Securities or Coupons in the
form required in said proceedings and cause said claim to be approved.
Section 13.6 Notice to Trustee. Notwithstanding the provisions of
this Article XIII or any other provisions of this Indenture, the Trustee shall
not be charged with the knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to the Trustee, unless and until
the Trustee shall have received written notice thereof from the Issuer or from
the holder or the representative of any class of Senior Indebtedness;
provided, however, that if at least three (3) Business Days prior to the date
upon which by the terms hereof any such monies may become payable for any
purpose (including, without limitation, the payment of either the cash amount
payable at maturity or interest on any Security or Coupon), a Responsible
Officer of the Trustee shall not have received with respect to such monies the
notice provided for in this Section 13.6, then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority
to receive such monies and to apply the same to the purpose for which they
were received, and shall not be affected by any notice to the contrary, which
may be received by it on or after such three (3) Business Days prior to such
date.
Section 13.7 Trustee May Hold Senior Indebtedness. Subject to the
provisions of Section 6.13, the Trustee shall be entitled to all the rights
set forth in this Article XIII with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee
or any Authenticating Agent of its right as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6.
Section 13.8 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
the Trustee 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 XIII or otherwise. With respect to the holders of
Senior Indebtedness, the Trustee undertakes to perform or to observe only such
of its covenants or obligations as are specifically set forth in this Article
XIII and no implied covenants or obligations with respect to holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.
Section 13.9 Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Company referred to
in this Article XIII, the Trustee, subject to the provisions of Section 6.1,
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, liquidating trustee, custodian,
receiver, 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 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 XIII.
Section 13.10 Applicability of Article XIII to Paying Agents. In case
at any time any paying agent other than the Trustee shall be appointed by the
Issuer and be then acting hereunder, the term "Trustee" as used in this
Article XIII in such case (unless the context shall otherwise require) be
construed as extending to and including such paying agent within its meaning
as fully for all intents and purposes as if such paying agent were named in
this Article XIII in place of the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of .
▇▇▇▇▇▇.▇▇▇ INDIA LIMITED
By:
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Name:
Title:
[CITIBANK, N.A.],
as Trustee
By:
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Name:
Title: