EXHIBIT 4.1
THERMO ELECTRON CORPORATION,
ISSUER
TO
BANKERS TRUST COMPANY,
TRUSTEE
INDENTURE
DATED AS OF October 29, 1998
DEBT SECURITIES
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Reconciliation and Tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act") and Indenture
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
Section 310(a)(1)......................................607
(a)(2)................................................607
(b)...................................................608
Section 311............................................611
Section 312(a).........................................701
(b)...................................................702
(c)...................................................702
Section 313(a).........................................703
(b)(2)................................................703
(c)...................................................703
(d)...................................................703
Section 314(a).........................................704
(c)(1)................................................102
(c)(2)................................................102
(e)...................................................102
(f)...................................................102
Section 315(a).........................................601
(b)....................................................602
(c)...............................................601, 602
(d)....................................................601
(e)....................................................515
Section 316(a).........................................101
(a)(1)(A)........................................502, 512
(a)(1)(B).............................................513
(b)...................................................508
(c)....................................................104
Section 317(a)(1)......................................503
(a)(2)................................................504
(b)..................................................1003
Section 318(a).........................................108
(c)....................................................108
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust Indenture Act,
which provides that the provisions of Sections 310 to and including 317 are a
part of and govern every qualified indenture, whether or not physically
contained herein.
TABLE OF CONTENTS
ARTICLE ONE: DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION.....................................................1
Section 101. Definitions.....................................................1
Section 102. Compliance Certificates and Opinions...........................12
Section 103. Form of Documents Delivered to Trustee.........................12
Section 104. Acts of Holders................................................13
Section 105. Notices, Etc. to Trustee and Company...........................15
Section 106. Notice to Holders of Securities; Waiver........................15
Section 107. Language of Notices............................................16
Section 108. Conflict with Trust Indenture Act..............................16
Section 109. Effect of Headings and Table of Contents.......................17
Section 110. Successors and Assigns.........................................17
Section 111. Separability Clause............................................17
Section 112. Benefits of Indenture..........................................17
Section 113. Governing Law..................................................17
Section 114. Legal Holidays.................................................17
Section 115. Taxes..........................................................18
ARTICLE TWO: SECURITIES FORMS................................................18
Section 201. Forms Generally................................................18
Section 202. [INTENTIONALLY OMITTED]........................................19
Section 203. Form of Trustee's Certificate of Authentication................19
Section 204. Securities in Global Form......................................19
Section 205. Form of Conversion Notice......................................20
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ARTICLE THREE: THE SECURITIES................................................20
Section 301. Amount Unlimited; Issuable in Series...........................20
Section 302. Currency; Denominations........................................24
Section 303. Execution, Authentication, Delivery and Dating.................24
Section 304. Temporary Securities...........................................26
Section 305. Registration, Transfer and Exchange............................28
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...............32
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved...............34
Section 308. Persons Deemed Owners..........................................36
Section 309. Cancellation...................................................37
Section 310. Computation of Interest........................................37
Section 311. CUSIP Numbers..................................................37
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Section 312. Notification of Withholding....................................37
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ARTICLE FOUR: SATISFACTION AND DISCHARGE OF INDENTURE........................38
Section 401. Satisfaction and Discharge.....................................38
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Section 402. Defeasance and Covenant Defeasance.............................39
Section 403. Application of Trust Money.....................................43
ARTICLE FIVE: REMEDIES.......................................................43
Section 501. Events of Default..............................................43
Section 502. Acceleration of Maturity; Rescission and Annulment.............45
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee....................................................47
Section 504. Trustee May File Proofs of Claim...............................47
Section 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.......................................................48
Section 506. Application of Money Collected.................................49
Section 507. Limitations on Suits...........................................49
Section 508. Unconditional Right of Holders to Receive Principal and Any
Premium, Interest and Additional Amounts......................50
Section 509. Restoration of Rights and Remedies.............................50
Section 510. Rights and Remedies Cumulative.................................50
Section 511. Delay or Omission not Waiver...................................51
Section 512. Control by Holders of Securities...............................51
Section 513. Waiver of Past Defaults........................................51
Section 514. Waiver of Usury, Stay or Extension Laws........................52
Section 515. Undertaking for Costs..........................................52
ARTICLE SIX: THE TRUSTEE......................................................52
Section 601. Certain Rights of Trustee; Certain Duties and
Responsibilities..............................................52
Section 602. Notice of Defaults.............................................54
Section 603. Not Responsible for Recitals or Issuance of Securities.........55
Section 604. May Hold Securities; Act as Trustee Under Other Indenture......55
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Section 605. Money Held in Trust............................................55
Section 606. Compensation and Reimbursement.................................55
Section 607. Corporate Trustee Required; Eligibility........................56
Section 608. Resignation and Removal; Appointment of Successor..............57
Section 609. Acceptance of Appointment by Successor.........................58
Section 610. Merger, Conversion, Consolidation or Succession to Business....60
Section 611. Preferential Collection of Claims Against Company..............60
Section 612. Appointment of Authenticating Agent............................60
Section 613. Conflicting Interests..........................................62
Section 614. Protection of Agents...........................................62
ARTICLE SEVEN: HOLDERS LISTS AND REPORTS BY TRUSTEE AND
COMPANY.......................................................63
Section 701. Company to Furnish Trustee Names and Addresses of Holders......63
Section 702. Preservation of Information; Communications to Holders.........63
Section 703. Reports by Trustee.............................................64
Section 704. Reports by Company.............................................64
ARTICLE EIGHT: CONSOLIDATION, MERGER, CONVEYANCE OR
TRANSFER......................................................65
ii
Section 801. Company May Consolidate, Etc., Only on Certain Terms...........65
Section 802. Successor Corporation Substituted..............................66
ARTICLE NINE: SUPPLEMENTAL INDENTURES........................................66
Section 901. Supplemental Indentures Without Consent of Holders.............66
Section 902. Supplemental Indentures With Consent of Holders................67
Section 903. Execution of Supplemental Indentures...........................69
Section 904. Effect of Supplemental Indentures..............................69
Section 905. Reference in Securities to Supplemental Indentures.............69
Section 906. Conformity with Trust Indenture Act............................69
ARTICLE TEN: COVENANTS........................................................70
Section 1001. Payment of Principal, Any Premium, Interest and Additional
Amounts......................................................70
Section 1002. Maintenance of Office or Agency...............................70
Section 1003. Money for Securities Payments to be Held in Trust.............72
Section 1004. Additional Amounts............................................73
Section 1005. Statement as to Compliance....................................76
Section 1006. Corporate Existence...........................................76
ARTICLE ELEVEN: REDEMPTION OF SECURITIES.....................................77
Section 1101. Applicability of Article......................................77
Section 1102. Election to Redeem; Notice to Trustee.........................77
Section 1103. Selection by Trustee of Securities to be Redeemed.............79
Section 1104. Notice of Redemption..........................................79
Section 1105. Deposit of Redemption Price...................................81
Section 1106. Securities Payable on Redemption Date.........................81
Section 1107. Securities Redeemed in Part...................................82
ARTICLE TWELVE: CONVERSION OF SECURITIES.....................................83
Section 1201. Conversion Privilege and Conversion Price.....................83
Section 1202. Exercise of Conversion Privilege..............................83
Section 1203. Fractions of Shares...........................................84
Section 1204. Adjustment of Conversion Price................................85
Section 1205. Notice of Adjustments of Conversion Price.....................87
Section 1206. Notice of Certain Corporate Action............................88
Section 1207. Company to Reserve Common Stock...............................89
Section 1208. Taxes on Conversions..........................................89
Section 1209. Covenant as to Common Stock...................................89
Section 1210. Cancellation of Converted Securities..........................89
Section 1211. Provision in Case of Consolidation, Merger or Sale
of Assets....................................................89
Section 1212. Compliance with Governmental Requirements.....................90
ARTICLE THIRTEEN: SINKING FUNDS..............................................90
Section 1301. Applicability of Article......................................90
Section 1302. Satisfaction of Sinking Fund Payments With Securities.........91
Section 1303. Redemption of Securities for Sinking Fund.....................91
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ARTICLE FOURTEEN: [INTENTIONALLY OMITTED].....................................92
ARTICLE FIFTEEN: REPAYMENT AT THE OPTION OF HOLDERS..........................92
Section 1501. Applicability Of Article......................................92
Section 1502. Repayment Of Securities.......................................93
Section 1503. Notice of Repayment...........................................93
Section 1504. Exercise Of Option............................................94
Section 1505. When Securities Presented For Repayment Become Due And
Payable......................................................95
Section 1506. Securities Repaid In Part.....................................96
ARTICLE SIXTEEN: MEETINGS OF HOLDERS OF SECURITIES...........................96
Section 1601. Purposes for Which Meetings May Be Called.....................96
Section 1602. Call, Notice and Place of Meetings............................96
Section 1603. Persons Entitled to Vote at Meetings..........................97
Section 1604. Quorum; Action................................................97
Section 1605. Determination of Voting Rights; Conduct and Adjournment of
Meetings.....................................................98
Section 1606. Counting Votes and Recording Action of Meetings...............99
ARTICLE SEVENTEEN: [INTENTIONALLY OMITTED]....................................99
ARTICLE EIGHTEEN: [INTENTIONALLY OMITTED]....................................100
EXHIBITS
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Exhibit A Form of Trustee's Certificate of Authentication
Exhibit B Conversion Notice
Exhibit C Form of Certificate of Beneficial Ownership for Bearer Securities to
be Provided to the Euroclear Operator or to Cedel Bank, societe
anonyme
Exhibit D Form of Certificate to be Given by the Euroclear Operator and Cedel
Bank, societe anonyme
Exhibit E Option to Elect Repayment upon a Repayment Event
iv
INDENTURE, dated as of October 29, 1998 (the "Indenture"), between
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Thermo Electron Corporation, a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter called the "Company"), having its
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principal executive office located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇; and Bankers Trust Company, a banking corporation duly organized and
existing under the laws of the State of New York (hereinafter called the
"Trustee"), having its principal Corporate Trust Office located at Four Albany
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▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
RECITALS:
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
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to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as provided in this Indenture.
All things necessary to make the Securities and any Coupons (as herein
defined), when executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company in accordance with its terms have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as herein defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities
or of any series thereof and any Coupons (as herein defined), as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
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Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America and, except as otherwise herein
expressly provided, the terms "generally accepted accounting principles" or
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"GAAP" with respect to any computation required or permitted hereunder
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shall mean such accounting principles as are generally accepted in the
United States of America, consistently applied, at the date of such
computation;
(4) the words "Article" and "Section" refer to an Article and
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Section, respectively, of this Indenture;
(5) the words "herein," "hereof," "hereto" and "hereunder" and other
------ ------ ------ ---------
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(6) the word "or" is always used inclusively (for example, the phrase
--
"A or B" means "A or B or both", not "either A or B but not both"); and
(7) the term "pursuant to this Indenture" shall include matters
covered in an Officers' Certificate issued pursuant to Section 301 or in
the Securities.
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act," when used with respect to any Holders, has the meaning specified in
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Section 104.
"Additional Amounts" has the meaning specified in Section 1004.
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"Affiliate" of any specified Person means any other Person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
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to Section 612 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper, in an official language of the
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place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are Legal Holidays in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in
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different newspapers in the same city meeting the foregoing requirements and in
each case on any day that is a Business Day in the place of publication.
"Bankruptcy Law" has the meaning specified in Section 501.
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"Bearer Security" means any Security established pursuant to Section 201
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which is payable to bearer.
"Board of Directors," when used with reference to the Company means either
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the board of directors or any duly authorized committee of such board of
directors of the Company.
"Board Resolution," when used with reference to the Company, means a copy
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of one or more resolutions, certified by the Corporate Secretary or an Assistant
Corporate Secretary of the Company, to have been duly adopted by its Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day," with respect to any Place of Payment, Place of Conversion
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or other location, means, unless otherwise specified with respect to any
Securities pursuant to Section 301, any day other than a Saturday, Sunday or
other day on which banking institutions in such Place of Payment, Place of
Conversion or other location are authorized or obligated by law, regulation or
executive order to close.
"Cedel" has the meaning specified in Section 304(c).
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"Closing Price Per Share" means, with respect to Common Stock, for any day,
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the reported last sales price regular way per share or, in case no such reported
sale takes place on such day, the average of the reported closing bid and
reported closing asked prices regular way or, if more than one in either case,
the average of the average reported closing bid and average reported closing
asked prices, as reported on the principal national or regional United States
securities exchange on which such Common Stock is listed or admitted to trading
or, if such Common Stock is not listed or admitted to trading on a United States
national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System or by the National
Quotation Bureau Incorporated. In the absence of such quotations, the Closing
Price Per Share shall be reasonably determined on the basis of such quotations
or other data as the Company considers appropriate.
"Commission" means the Securities and Exchange Commission, as from time to
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time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depository" means the Person specified as such pursuant to Section
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301.
"Common Stock" means the Common Stock, par value $1.00 per share, of the
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Company authorized at the date of this instrument as originally executed.
Subject to the provisions of Section 1201 and 1211, shares issuable on
conversion of Securities shall include only shares of
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Common Stock or shares of any class or classes of common stock resulting from
any reclassification or reclassifications thereof; provided, however, that if at
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any time there shall be more than one such resulting class, the shares so
issuable on conversion of Securities shall include shares of all such classes,
and the shares of each such class then so issuable shall be substantially in the
proportion that the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"common stock" includes any stock of any class of capital stock which has
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no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the issuer
thereof and which, by its terms, is not subject to redemption by the issuer
thereof.
"Company" means the Person named as the "Company" in the first paragraph of
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this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
-------
such successor Person.
"Company Request" and "Company Order" mean, respectively, a written request
--------------- -------------
or order, as the case may be, signed in the name of the Company by any two
Officers or by any Officer and either an Assistant Treasurer or an Assistant
Corporate Secretary, of the Company and delivered to the Trustee.
"Conversion Agent" means any Person authorized by the Company to convert
----------------
Securities in accordance with Article Twelve.
"Conversion Date" means the date on which any Security, which is
---------------
convertible by the terms and provisions of such Security established pursuant to
Section 301, and the duly signed and completed conversion notice shall have been
delivered to any Place of Conversion in accordance with the provisions of
Article Twelve.
"Conversion Price" has the meaning specified in Section 1201.
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"Corporate Secretary" or "Assistant Corporate Secretary" means the person
------------------- -----------------------------
elected by the Company's Board of Directors to hold the title of "Secretary" or
"Assistant Secretary" as provided for by the applicable corporate law of the
Company's jurisdiction of incorporation.
"Corporate Trust Office" means the principal corporate trust office of the
----------------------
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of original execution of this Indenture
is located at Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Corporation" and "corporation" includes corporations, associations,
----------- -----------
companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
------
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"Currency," with respect to any payment, deposit or other transfer in
--------
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars, and, with respect to any
other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, also means Dollars.
"CUSIP Number" means the alphanumeric designation assigned to a Security by
------------
Standard & Poor's Ratings Services, CUSIP Service Bureau.
"Custodian" has the meaning specified in Section 501.
---------
"Default" means any event or condition the occurrence of which would, with
-------
the lapse of time or the giving of notice, or both, constitute an Event of
Default.
"Defaulted Interest" has the meaning specified in Section 307.
------------------
"Definitive Security" means any Security that is a Bearer Security (other
-------------------
than a temporary global Bearer Security) or a Registered Security (other than a
temporary Registered Security).
"Dollars" or "$" means a dollar or other equivalent unit of legal tender
------- -
for payment of public or private debts in the United States.
"EUROCLEAR" has the meaning specified in Section 304(c).
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"Event of Default" has the meaning specified in Section 501.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
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time to time.
"Exchange Date" means the date specified as such pursuant to Section 301.
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"Foreign Entity" has the meaning specified in Section 801.
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"GAAP" means such accounting principles as are generally accepted in the
----
United States of America as of the date or time of any computation required
hereunder.
"Government Obligations" means securities which are (i) direct obligations
----------------------
of the United States or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States, and which, in the case of (i) or
(ii), are not callable or redeemable at the option of the issuer or issuers
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of or other amount with respect to
any such Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
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custodian is not authorized to make any deduction from the amount payable to the
-5-
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation evidenced
by such depository receipt.
"Holder," in the case of any Registered Security, means the Person in whose
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name such Security is registered in the Security Register and, in the case of
any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indenture" means this instrument as it may from time to time be
---------
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of accountants
------------------------------
that, with respect to the Company and any other obligor under the Securities or
the Coupons, are independent public accountants within the meaning of the
Securities Act, and the rules and regulations promulgated by the Commission
thereunder, who may be the independent public accountants regularly retained by
the Company or who may be other independent public accountants. Such
accountants or firm shall be entitled to rely upon any Opinion of Counsel as to
the interpretation of any legal matters relating to this Indenture or
certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
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principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest" or "interest," with respect to any Original Issue Discount
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Security, which by its terms bears interest only after Maturity, means interest
payable after Maturity and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
"Interest Payment Date," with respect to any Security, means the Stated
----------------------
Maturity of an installment of interest on such Security.
"Interest Record Date" means any Regular Record Date or Special Record
--------------------
Date.
"Internal Revenue Code" means the United States Internal Revenue Code of
---------------------
1986, as amended.
"Investment Company Act" means the Investment Company Act of 1940, as
----------------------
amended.
"Legal Holidays" has the meaning specified in Section 114.
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"Maturity," with respect to any Security, means the date on which the
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principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to
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this Indenture, whether at the Stated Maturity or by declaration of
acceleration, notice of redemption or repayment, notice of option to elect
repayment or otherwise, and includes the Redemption Date.
"Office" or "Agency", with respect to any Securities, means an office or
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agency of the Company maintained or designated as a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officer" means the Chairman of the Board, the President, any Vice
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President (whether or not designated by a number or word added before or after
the title vice president), the Treasurer, the Chief Financial Officer or the
Corporate Secretary of the Company.
"Officers' Certificate" of the Company means a certificate signed by two
---------------------
Officers or by any Officer and either an Assistant Treasurer or an Assistant
Corporate Secretary of the Company that complies with the requirements of
Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who (unless
------------------
otherwise provided herein) may be an employee of or counsel for the Company or
other counsel that, if required by the Trust Indenture Act, complies with the
requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means any Security issued pursuant to
--------------------------------
this Indenture which provides for an amount less than the principal face amount
thereof to be due and payable upon acceleration of the Maturity thereof pursuant
to Section 502.
"Other Additional Amounts" has the meaning specified in Section 1004.
--------------------------
"Outstanding," when used with respect to any Securities, means, as of the
-----------
date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(1) any such Security theretofore canceled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security Registrar
for cancellation;
(2) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant hereto
(other than pursuant to Section 402) with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent), for the
Holders of such Securities and any Coupons appertaining thereto, provided
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that, if such Securities are to be redeemed, notice of such redemption has
----
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
-7-
(3) any such Security with respect to which the Company has effected
defeasance or covenant defeasance pursuant to Section 402, except to the
extent provided in Section 402; and
(4) any such Security which has been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless there shall
have been presented to the Trustee proof satisfactory to it that such
Security is held by a bona fide purchaser in whose hands such Security is a
valid obligation of the Company,
provided, however, that in determining whether the Holders of the requisite
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principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes, (i) the
principal amount of an Original Issue Discount Security that may be counted
in making such determination and that shall be deemed to be Outstanding for
such purposes shall be equal to the amount of the principal thereof that
pursuant to the terms of such Original Issue Discount Security would be
declared (or shall have been declared to be) due and payable upon a
declaration of acceleration thereof pursuant to Section 502 at the time of
such determination, and (ii) the principal amount of any Indexed Security
that may be counted in making such determination and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise provided in or
pursuant to this Indenture, and (iii) Securities beneficially owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in making any such determination or relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be
so owned shall be so disregarded. Securities so owned which shall have been
pledged in good faith shall be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee (a) the pledgee's right so
to act with respect to such Securities and (b) that the pledgee is not the
Company or any other obligor upon the Securities or any Coupons
appertaining thereto or an Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon or take any other actions specifically
provided in this Indenture on behalf of the Company.
"Person" means any individual, corporation, partnership, association, joint
------
venture, joint-stock company, limited liability company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Conversion" means any city in which any Conversion Agent is
-------------------
located.
-8-
"Place of Payment," with respect to any Security, means the place or places
----------------
where the principal of, or any premium or interest on, or any Additional Amounts
with respect to, such Security are payable as provided in or pursuant to this
Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
--------------------
Security evidencing all or a portion of the same indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Redemption Date," with respect to any Security or portion thereof to be
---------------
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price," with respect to any Security or portion thereof to be
----------------
redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to Section
-------------------
201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered Security
-------------------
on any Interest Payment Date therefor means the date, if any, specified in or
pursuant to this Indenture or such Security as the "Regular Record Date."
"Repayment Date" has the meaning specified in Section 1502.
--------------
"Repayment Event" has the meaning specified in Section 1502.
---------------
"Repayment Notice" has the meaning specified in Section 1503.
----------------
"Repayment Price" has the meaning specified in Section 1502.
---------------
"Responsible Officer," shall mean when used with respect to the Trustee,
-------------------
any officer within the Corporate Trust Office including any Vice President,
Managing Director, Assistant Vice President, Corporate Secretary, Assistant
Corporate Secretary, Treasurer or Assistant Treasurer or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
"Security" or "Securities" means any note or notes, bond or bonds,
-------- ----------
debenture or debentures, or any other evidences of indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
-------- -------
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities," with respect to any such Person, shall
----------
-9-
mean Securities authenticated and delivered under this Indenture, exclusive,
however, of Securities of any series as to which such Person is not Trustee.
"Securities Act" means the Securities Act of 1933, as amended.
---------------
"Security Register" and "Security Registrar" have the respective meanings
----------------- ------------------
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on any
-------------------
Registered Security means a date fixed as such by the Trustee pursuant to
Section 307.
"Stated Maturity," with respect to any Security or any installment of
---------------
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security or Coupon as the fixed date on which the principal of such Security or
such installment of principal or interest is, or such Additional Amounts are,
due and payable.
"Subsidiary" means a corporation or other entity, a majority of the
----------
outstanding voting securities or other ownership interests having ordinary
voting power to elect a majority of the corporate directors or other Persons
performing similar functions of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"Tax" has the meaning specified in Section 1004.
----
"Tax Affected Security" means any Security held by a non-United States
---------------------
person to whom Additional Amounts have or will become payable.
"Tax Law Change" means any change in, or amendment to, the laws (including
--------------
any regulations or rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting taxation,
or any change in, or amendment to, the application or official interpretation of
such laws, regulations or rulings.
"Trading Days" means (i) if the Common Stock is quoted on any system of
------------
automated dissemination of quotations of securities prices (other than a
national securities exchange), days on which trades may be effected through such
system and on which at least one trade of the Common Stock has occurred, (ii) if
the Common Stock is listed or admitted for trading on any national securities
exchange, days on which such national securities exchange is open for business
and on which at least one trade of the Common Stock has occurred or (iii) if the
Common Stock is not quoted on an automated quotation system or listed or
admitted to trading on any national securities exchange, days on which the
Common Stock is traded regular way in the over-the-counter market and for which
a closing bid and a closing asked price for the Common Stock are available.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
-------------------
and any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Act
-10-
or provision, as the case may be, as amended or replaced from time to time or as
supplemented from time to time by rules or regulations adopted by the Commission
under or in furtherance of the purposes of such Act or provision, as the case
may be.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
------- -------
this instrument until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each Person who is
-------
then a Trustee hereunder; provided, however, that if at any time there is more
-------- -------
than one such Person, "Trustee" as used with respect to the Securities of any
-------
series shall mean the Trustee with respect to Securities of such series.
"United States," except as otherwise provided in or pursuant to this
-------------
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States person" is a person that is, for United States Federal
--------------------
income tax purposes, (a) a citizen or resident of the United States, (b) a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, (c) an estate,
the income of which is subject to United States Federal income taxation
regardless of source, (d) any trust if a court within the United States is able
to exercise primary supervision of the administration thereof and one or more
United States persons has the authority to control all substantial decisions
thereof, or (e) any other person included within the definition of United States
person under the Internal Revenue Code and the regulations thereunder.
"U.S. Depository" or "Depository" means, with respect to any Security
--------------- ----------
issuable or issued in the form of one or more global Registered Securities, the
Person designated as U.S. Depository or Depository by the Company in or pursuant
to this Indenture, which Person must be, to the extent required by applicable
law or regulation, a clearing agency registered under the Exchange Act, and, if
so provided with respect to any Security, any successor to such Person. If at
any time there is more than one such Person, "U.S. Depository" or "Depository"
--------------- ----------
shall mean, with respect to any Securities, the qualifying entity which has been
appointed with respect to such Securities.
"Vice President," when used with respect to the Company or the Trustee,
--------------
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President."
--------------
Section 102. Compliance Certificates and Opinions.
------------------------------------
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such document
is specifically required by any
-11-
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has been
satisfied or complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been satisfied or complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by or
covered by an opinion of any specified Person, it is not necessary that all such
matters be certified by or covered by the opinion of only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate or opinion is
based is erroneous. Any such Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
-12-
Section 104. Acts of Holders.
---------------
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing. If, but only if, Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
in or pursuant to this Indenture to be given or taken by Holders of
Securities of such series may, alternatively, be embodied in and evidenced
by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Sixteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
and any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing such
---
instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent,
or of the holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 315 of the Trust
Indenture Act) conclusive in favor of the Trustee and the Company and any
agent of the Trustee or the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 1606.
Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository
that is a Holder of a global Security, may make, give or take, by a proxy,
or proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to
this Indenture or the Securities to be made, given or taken by Holders, and
a Depository that is a Holder of a global Security may provide its proxy or
proxies to the beneficial owners of interests in any such global Security
through such Depository's standing instructions and customary practices.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules as
the Trustee may determine; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this
Section 104.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the
date of the termination of holding the same, shall be proved by the
Security Register.
-13-
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the
date of the termination of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depository, by any trust company, bank or other depository reasonably
acceptable to the Company, wherever situated, if such certificate shall be
deemed by the Company and the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depository,
or exhibited to it, the Bearer Securities therein described; or such facts
may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the
Company and the Trustee to be satisfactory. The Trustee and the Company
may assume that such ownership of any Bearer Security continues until (i)
another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (ii) such Bearer Security is
produced to the Trustee by some other Person, or (iii) such Bearer Security
is surrendered in exchange for a Registered Security, or (iv) such Bearer
Security is no longer Outstanding. The ownership, principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of the commencement and the date of the
termination of holding the same may also be proved in any other manner
which the Company and the Trustee deem sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated
to), by a Company Board Resolution, fix in advance a record date for the
determination of Holders of Registered Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act. Notwithstanding Trust Indenture Act Section 316(c), such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later
than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only
the Holders of Registered Securities of record at the close of business on
such record date shall be deemed to be Holders for the purpose of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the
Holders of Registered Securities shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future
Holder of the same Security and any Coupon appertaining thereto and the
Holder of every Security or Coupon issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything
done or suffered to be done by the Trustee, any Security Registrar, any
Paying
-14-
Agent or the Company in reliance thereon, whether or not notation of such
Act is made upon such Security.
(7) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security
may do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of
such principal amount.
Section 105. Notices, Etc. to Trustee and Company.
------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to the attention of its Treasurer at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver.
---------------------------------------
Except as otherwise expressly provided in or pursuant to this Indenture,
where this Indenture provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock exchange so requires, on a
Business Day at least once, such publication to be not earlier than the
earliest date and not later than the latest date prescribed for the giving
of such notice; provided that any additional notice to Holders of
-------------
Securities of any event may be provided at any time upon the request of the
Company and shall provided in the manner set forth above.
-15-
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Language of Notices.
-------------------
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be in
an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
---------------------------------
This Indenture is subject to the provisions of the Trust Indenture Act that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions. If any provision hereof limits, qualifies or
conflicts with any duties under any required provision of the Trust Indenture
Act imposed hereon by Section 318(c) thereof, such required provision shall
control.
Section 109. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
-16-
Section 110. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
-------------------
In case any provision in this Indenture, any Security or any Coupon shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 112. Benefits of Indenture.
---------------------
Nothing in this Indenture, any Security or any Coupon shall give to any
Person, other than the parties hereto, any Security Registrar, any Paying Agent
or Conversion Agent and their successors hereunder and the Holders of Securities
or Coupons, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 113. Governing Law.
-------------
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts
applicable to agreements made or instruments entered into and, in each case,
performed in said state, except that the rights, protections, obligations,
indemnities and immunities of the Trustee under this Indenture shall be governed
by the laws of the State of New York, without regard to the principles of
conflicts of laws of either state.
Section 114. Legal Holidays.
--------------
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Conversion Date,
Redemption Date, Repayment Date, Stated Maturity or Maturity of any Security
shall not be a Business Day at any Place of Payment or any Place of Conversion,
as the case may be, then (notwithstanding any other provision of this Indenture,
any Security or Coupon other than a provision in any Security or Coupon that
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal (and premium or Additional Amounts, if any) or
delivery for conversion of such Security need not be made at such Place of
Payment or Place of Conversion on such date, but such payment may be made on the
next succeeding Business Day at such Place of Payment or Place of Conversion
with the same force and effect as if made on the Interest Payment Date,
Conversion Date, Redemption Date, Repayment Date or at the Stated Maturity or
Maturity or by such last day for conversion, and no interest shall accrue on the
amount payable on such date or at such time for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, Conversion Date, Stated
Maturity or Maturity or last day for conversion, as the case may be, to the next
succeeding Business Day.
-17-
Section 115. Taxes.
-----
The Company will pay all stamp taxes and other similar duties, if any,
that may be imposed by the United States or the United Kingdom, or any state or
political subdivision thereof or taxing authority therein, with respect to the
execution or delivery of this Indenture, or the issuance of the Securities or
Coupons, or the exchange from time to time of the temporary or permanent
Securities in global form for Registered Securities or Bearer Securities, or
with respect to the issue or delivery of shares of Common Stock on conversion of
Securities; provided, however, that the Company shall not be required to pay any
-------- -------
tax or duty which may be payable in respect of the registration of transfer or
exchange of Securities and any transfer involved in the issue or delivery of
shares of Common Stock in a name other than that of the Holder of the Security
or Securities to be converted in accordance with the provisions of Article
Twelve, and no such issue or delivery shall be made unless and until the person
requesting such issue has paid to the Company the amount of any such tax or duty
or has established to the satisfaction of the Company that such tax or duty has
been paid; and provided further, that the Company shall not be required to pay
-------- -------
any tax or duty that may be payable in respect of any accrued interest paid in
connection with the conversion of the Securities.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.
---------------
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Company Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by or
pursuant to this Indenture or any indenture supplemental hereto, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Security or Coupon as evidenced by their execution of
such Security or Coupon. If the form of Registered Security, Bearer Security,
Coupon or temporary or permanent global Security is established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the Corporate Secretary or an Assistant
Corporate Secretary of the Company, and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Registered Security, Bearer Security,
Coupon, temporary or permanent global Security.
Definitive Securities and definitive Coupons shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing such Securities or
Coupons, as evidenced by their execution of such Securities or Coupons.
-18-
Unless otherwise specified pursuant to Section 301 and except for temporary
global Bearer Securities (as contemplated by Section 304 hereof), Bearer
Securities shall have Coupons attached.
Section 202. [INTENTIONALLY OMITTED].
Section 203. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 612, the Trustee's certificate of authentication shall
be in substantially the form attached to this Indenture as Exhibit A.
----------
Section 204. Securities in Global Form.
-------------------------
Unless otherwise provided in or pursuant to this Indenture, the Securities
initially shall be issued in global form. Securities issued in temporary or
permanent global form may provide that it or any number of such Securities shall
represent the aggregate principal amount of all Outstanding Securities of such
series (or such lesser amount as is permitted by the terms thereof) from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be increased or
reduced to reflect exchanges. Any global Security authenticated and delivered
hereunder may bear any legend or other statement required to comply with the
requirements of any Depository or Common Depository. Any endorsement of any
global Security to reflect the amount, or any increase or decrease in the
amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or Persons
as shall be specified therein. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security in
permanent global form in a manner mutually acceptable to the Company and the
Trustee and upon instructions given by an Officer. If a Company Order pursuant
to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in global form shall be
in writing but need not be accompanied by or contained in a Company Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise specified
in or pursuant to this Indenture or any Securities, payment of principal of, any
premium and (except for temporary global Bearer Securities (as contemplated by
Section 304 hereof)) interest on, and any Additional Amounts in respect of, any
temporary or permanent global Security shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global Security
in registered form, the Holder of such global Security in registered form, or
(ii) in the case of a temporary global Security in bearer form, the Person or
Persons specified pursuant to Section 301.
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Section 205. Form of Conversion Notice.
-------------------------
At the time of conversion of a Security in accordance with Article Twelve,
the Holder of such Security shall deliver to the Trustee, the Conversion Agent
and the Company a notice of conversion in substantially the form attached to
this Indenture as Exhibit B.
---------
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered and outstanding under this Indenture is unlimited. The Securities may
be issued in one or more series.
With respect to any Securities to be authenticated and delivered hereunder,
there shall be established in or pursuant to one or more Company Board
Resolutions, or pursuant to authority granted by one or more Company Board
Resolutions and, subject to Section 303, set forth or determined in the manner
provided in a Company Officers' Certificate, or established in one or more
indentures supplemental hereto prior to the issuance of any Securities of a
series any or all of the following; provided that if any of the following are
-------- ----
already provided for in this Indenture, then such provisions shall be applicable
to each series established hereunder unless otherwise provided pursuant to the
Company Board Resolutions establishing such series and set forth in the
applicable Company Officers' Certificate or unless otherwise provided in any
Indenture or Indentures supplemental hereto pertaining to such series of
Securities:
(1) the title or designation of such Securities and the series in
which such Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities of
such title or designation or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration or transfer of, or in
exchange for, or in lieu of, other Securities of such series pursuant to
Section 304, 305, 306, 905 or 1107, upon repayment in part of any Security
of such series pursuant to Article Fifteen, or upon surrender in part of
any Security for conversion or exchange into other securities pursuant to
its terms, or pursuant to the terms of such Securities);
(3) if such Securities are to be issuable as Registered Securities, as
Bearer Securities or alternatively as Bearer Securities and Registered
Securities, and whether the Bearer Securities are to be issuable with
Coupons, without Coupons or both, and any restrictions applicable to the
offer, sale or delivery of the Bearer Securities and the terms, if any,
upon which Bearer Securities may be exchanged for Registered Securities and
vice versa;
-20-
(4) if any of such Securities are to be issuable in global form, when
any of such Securities are to be issuable in global form and (i) whether
such Securities are to be issued in temporary or permanent global form or
both, (ii) the extent to which, or the manner in which, any interest
payment or Additional Amounts on a global Security on an Interest Payment
Date will be paid and the manner in which any principal of or premium, if
any, on any global Security will be paid, (iii) whether beneficial owners
of interests in any such global Security may exchange such interests for
Securities of the same series and of like tenor and of any authorized form
and denomination, and the circumstances under which any such exchanges may
occur, if other than in the manner specified in Section 305, (iv) the name
of the Depository or the U.S. Depository, as the case may be, with respect
to any global Security, (v) the name of the Common Depository, if
applicable, and (vi) the Exchange Date, if applicable;
(5) if any of such Securities are to be issuable as Bearer Securities
or in global form, the date as of which any such Bearer Security or global
Security shall be dated (if other than the date of original issuance of the
first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer Securities,
whether interest in respect of any portion of a temporary Bearer Security
in global form payable in respect of an Interest Payment Date therefor
prior to the Exchange Date, shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date, if other than as provided
in Section 304;
(7) the date or dates, or the method or methods, if any, by which such
date or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear interest, if
any, or the method or methods, if any, by which such rate or rates are to
be determined, the date or dates, if any, from which such interest shall
accrue or the method or methods, if any, by which such date or dates are to
be determined, the Interest Payment Dates, if any, on which such interest
shall be payable and the Regular Record Dates, if any, for the interest
payable on Registered Securities on any Interest Payment Date, whether and
under what circumstances Additional Amounts on such Securities or any of
them shall be payable, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of
giving such notice, and the basis upon which interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The City
of New York (or, in the case of Bearer Securities, except as otherwise
provided herein, London, England), the place or places where the principal
of, any premium and interest on or any Additional Amounts with respect to
such Securities shall be payable, any of such Securities may be surrendered
for registration of transfer and exchange, any of such
-21-
Securities may be surrendered for transfer, exchange or conversion in the
circumstances described herein and notices or demands to or upon the
Company in respect of such Securities and this Indenture may be served;
(10) whether any of such Securities are to be redeemable at the option
of the Company and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities may be redeemed, in whole or in part,
at the option of the Company and, if other than by a Company Board
Resolution, the manner in which any election by the Company to redeem the
Securities shall be evidenced;
(11) if the Company is obligated to redeem or purchase any of such
Securities pursuant to any sinking fund or analogous provision or at the
option of any Holder thereof (including under Article Fifteen) and, if so,
the date or dates on which, the period or periods within which, the price
or prices at which and the other terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part, pursuant to
such obligation, and any provisions for the remarketing of such Securities
so redeemed or purchased;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in which
any of such Securities that are Bearer Securities shall be issuable if
other than the denominations of $1,000 and $10,000;
(13) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion is to be determined;
(14) if the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities may
be determined with reference to an index, indices, formula or other method
or methods (which index, indices, formula or method or methods may be
based, without limitation, on one or more currencies, commodities, equity
indices or other indices), and, if so, the terms and conditions upon which
and the manner in which such amounts shall be determined and paid or
payable;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to any of such
Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(16) if either or both of Section 402(2) relating to defeasance or
Section 402(3) relating to covenant defeasance shall be applicable to the
Securities of such series, or any covenants in addition to those specified
in Section 402(3) relating to the Securities of such series which shall be
subject to covenant defeasance, and any deletions from, or
-22-
modifications or additions to, the provisions of Article Four in respect of
the Securities of such series shall apply;
(17) the terms, if any, on which such Securities may be converted into
or exchanged for other securities of the Company;
(18) if any of such Securities are to be issuable in global form and
are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the form and
terms of such certificates, documents or conditions;
(19) if there is more than one Trustee, the identity of the Trustees
and, if not the Trustee, the identity of each Security Registrar, and the
identity of each Paying Agent, Conversion Agent or Authenticating Agent
with respect to such Securities;
(20) [INTENTIONALLY OMITTED]; and
(21) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such Securities
(which terms shall not be inconsistent with the provisions of this
Indenture, except as permitted by Section 901).
All Securities of any one series and all Coupons, if any, appertaining to
Bearer Securities of such series shall be substantially identical except as to
denomination and Maturity and except as may otherwise be provided by the Company
in or pursuant to the Company Board Resolution and (subject to Section 303) set
forth in the Company Officers' Certificate or in any indenture or indentures
supplemental hereto pertaining to such series of Securities. The terms of the
Securities of any series (as set forth in or pursuant to the applicable Board
Resolution) may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Company Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to
determine, consistent with such Company Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such Company Officers' Certificate or supplemental
indenture. All Securities of any one series need not be issued at the same time
and, unless otherwise so provided by the Company, a series may be reopened for
issuances of additional Securities of such series.
If any of the terms of the Securities of any series shall be established
and approved by action taken by or pursuant to Board Resolutions of the Company,
copies of appropriate records of such actions shall be certified by the
Secretary or an Assistant Secretary of the Company, and delivered to the Trustee
at or prior to the delivery of the Officers' Certificates setting forth the
terms of such series.
-23-
Section 302. Currency; Denominations.
-----------------------
The principal of, any premium and interest on and any Additional Amounts
with respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities shall be
issuable in registered form without Coupons in denominations of $1,000 and any
integral multiple thereof, and Bearer Securities shall be issuable in
denominations of $1,000 and $10,000 (or any other authorized denominations) with
Coupons attached.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
Securities shall be executed on behalf of the Company by any Officer under
its corporate seal reproduced thereon and attested by its Corporate Secretary
(provided that the Corporate Secretary shall not attest his or her own signature
as an Officer) or one of its Assistant Corporate Secretaries. Coupons shall be
executed on behalf of the Company by any Officer. The signature of any of these
officers on the Securities or any Coupons appertaining thereto may be manual or
facsimile.
Securities and Coupons appertaining thereto bearing the manual or facsimile
signatures of individuals who were at any time the proper Officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or Coupons or did not hold such offices at the date of such
Securities or Coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for
authentication and, provided that the Company Board Resolutions and Company
Officers' Certificate (if the terms of such Securities are provided therein
pursuant to authority granted by Company Board Resolution) or supplemental
indenture or indentures with respect to such Securities referred to in Section
301 and a Company Order for the authentication and delivery of such Securities
have been delivered to the Trustee, the Trustee in accordance with the Company
Order and subject to the provisions hereof and of such Securities shall
authenticate and deliver such Securities; provided, however, that, in connection
-----------------
with its original issuance, no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that a
-----------------
Bearer Security (other than a temporary global Bearer Security) may be delivered
outside the United States in connection with its original issuance only if the
certifications described in Section 304 are provided in accordance with the
provisions of Section 304. If any Security shall be represented by a permanent
global Security, then, for purposes of this Section and Section 304, the
notation of a beneficial owner's interest therein upon original issuance of such
Security or upon exchange of a portion of a temporary global Security shall be
deemed to be delivery in connection with the original issuance of such
beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306 the Trustee for the Securities of a series shall not
authenticate and deliver any Bearer Security unless all appurtenant Coupons for
interest then matured other than matured coupons in default have been detached
and canceled. If all the Securities of any one series are not to be issued at
one time and if a Board Resolution relating to such Securities or Officers'
Certificate
-24-
shall so permit, such Officers' Certificate may include provisions for the
issuance of such Securities, including, without limitation, provisions with
respect to interest rate, Stated Maturity, date of issuance and date from which
interest, if any, shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
Coupons appertaining thereto, the Trustee shall be entitled to receive, and
(subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be
fully protected in relying upon:
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and Coupons, if
any, have been established or approved by or pursuant to a Board Resolution
of the Company in conformity with Sections 201 and 301 of this Indenture;
(b) all conditions precedent to the authentication and delivery of
such Securities and Coupons, if any, appertaining thereto, have been
complied with and that such Securities and Coupons, when completed by
appropriate insertions, executed under the Company's corporate seal and
attested by duly authorized officers of the Company, delivered by duly
authorized officers of the Company to the Trustee for authentication
pursuant to this Indenture, and authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legally valid and
binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization, moratorium,
arrangement, fraudulent conveyance, fraudulent transfer or other similar
laws of general applicability to the Company and relating to or affecting
creditors' rights and to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law); and
(c) this Indenture has been qualified under the Trust Indenture Act;
and
(2) a Company Officers' Certificate stating that, to the best
knowledge of the Persons executing such certificate, no Default or Event of
Default with respect to any of the Securities shall have occurred and be
continuing.
If all of the Securities of any series are not to be issued at one time,
unless requested by the Trustee, it shall not be necessary to deliver an Opinion
of Counsel at the time of issuance of each Security, but such opinion, with such
modifications as counsel shall deem appropriate, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Company that the Trustee authenticate
additional Securities of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the
-25-
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee or if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken.
Each Security shall be dated as of the date specified in or pursuant to
this Indenture.
No Security or Coupon appertaining to such Security shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Security a certificate of authentication
substantially in the form provided for in Section 203 or 612 executed by or on
behalf of the Trustee or by the Authenticating Agent by the manual signature of
one of its authorized officers. Such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 306 or
307, the Trustee shall not authenticate or deliver any Bearer Security unless
all Coupons appertaining thereto then matured have been detached and canceled.
Section 304. Temporary Securities.
--------------------
(a) Pending the preparation of Definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order for authentication
and delivery, the Trustee shall authenticate and deliver, in the manner provided
in Section 303, temporary Securities in lieu thereof which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the Definitive Securities in lieu of
which they are issued, in registered form or, if authorized in or pursuant to
this Indenture, in bearer form with one or more Coupons or without Coupons, with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. Such temporary Securities may be in
global form.
(b) Except in the case of temporary global Bearer Securities, which shall
be exchanged in accordance with the provisions of clause (c) of this Section
304, if temporary Securities are issued, the Company shall cause Definitive
Securities to be prepared without unreasonable delay. After the preparation of
Definitive Securities of the same series and containing terms and provisions
that are identical to those of any temporary Securities, such temporary
Securities shall be exchangeable for such Definitive Securities upon surrender
of such temporary Securities at an Office or Agency for such Securities, without
charge to any Holder thereof. Upon surrender for cancellation of any one or
more temporary Securities (accompanied by any unmatured Coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of Definitive Securities of
authorized denominations of the same series and containing identical terms and
provisions; provided, however, that no definitive Bearer Security, except as
-------- -------
provided in or pursuant to this Indenture, shall be delivered in exchange for a
temporary Registered Security; and provided, further, that a definitive Bearer
-------- -------
Security shall be delivered in exchange for a temporary global Bearer Security
only in compliance with the conditions set forth in or pursuant to this
Indenture. Unless otherwise provided in or pursuant to this Indenture with
respect to a temporary global Bearer Security, until so exchanged the temporary
Securities of any series shall
-26-
in all respects be entitled to the same benefits under this Indenture as
Definitive Securities of such series.
(c) All or a portion of the Securities constituting Bearer Securities may
be initially issued as temporary global Bearer Securities without Coupons or
conversion rights. Such temporary global Bearer Securities shall be deposited on
the applicable closing date on behalf of the subscribers for the Securities
represented thereby with the Common Depository, for credit to their respective
accounts (or to such other accounts as they may direct) at ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF New York, Brussels Office, as operator of the Euroclear Clearance
System ("Euroclear"), or Cedel Bank, Societe Anonyme ("Cedel").
On or before the Exchange Date, the Company shall deliver to the Paying
Agent in London at its principal London office or to its designated agent
outside the United States, definitive Bearer Securities. On or after the
applicable Exchange Date, the temporary global Bearer Securities may be
surrendered by the Common Depository to the Trustee, to be exchanged, in whole
or from time to time in part, for definitive Bearer Securities without charge to
Holders, and the Trustee or the Paying Agent in London or other Paying Agent
outside the United States shall authenticate and deliver (at an office or agency
outside the United States), in exchange for the temporary global Bearer
Securities or the portions thereof to be exchanged, an equal aggregate principal
amount of definitive Bearer Securities, as shall be specified by the holders
thereof; provided, however, that upon such presentation by the Common
-------- -------
Depository, the temporary global Bearer Securities are accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euroclear
as to the portion of the temporary global Bearer Securities held for its account
then to be exchanged and a certificate dated the Exchange Date or a subsequent
date and signed by Cedel as to the portion of the temporary global Bearer
Securities held for its account then to be exchanged, each substantially in the
form of Exhibit D hereto to the effect that it has received a certificate or
---------
certificates substantially in the form of Exhibit C hereto dated no earlier than
---------
15 days prior to the Exchange Date and signed by the person appearing in its
records as the owner of the temporary global Bearer Securities or portions
thereof being exchanged. The Company hereby appoints the principal office of
the Paying Agent in London, England, or its designated agent, as its agent
outside the United States where definitive Bearer Securities may be delivered in
exchange for the temporary global Bearer Securities or portions thereof. Each
beneficial owner of any portion of the temporary global Bearer Securities shall
be entitled to take delivery of definitive Bearer Securities only at such
office. Upon the exchange of the temporary global Bearer Security in whole for
definitive Bearer Securities or for Registered Securities (if permitted by the
rules and procedures then in effect of Cedel and Euroclear), the temporary
global Bearer Security shall be canceled in accordance with Section 309 of this
Indenture.
Temporary global Bearer Securities will be exchangeable for Registered
Securities in denominations of $1,000 or an integral multiple thereof at any
time without the certification requirements set forth in the preceding
paragraph; provided that such exchange is permitted by the rules and procedures
-------- ----
then in effect of Cedel and Euroclear, and provided, further, that if and so
--------- -------
long as Registered Securities of a series are represented solely by a permanent
global Registered Security, the temporary global Bearer Security will only be
exchangeable for an interest in the permanent global Registered Security as set
forth in Section 305 herein.
-27-
Notwithstanding any other provision hereof or of the Securities, no Bearer
Security initially represented by a temporary global Bearer Security will be
mailed to or otherwise delivered in connection with its original issuance to any
location within the United States. The Trustee agrees that it will cause the
Paying Agent in London (if any) to retain each certificate provided by Euroclear
or Cedel for a period of four calendar years following the year in which the
certificate is received and not to destroy or otherwise dispose of any such
certificate without first offering to deliver it to the Company.
Upon any such exchange of a portion of the temporary global Bearer Security
for definitive Bearer Securities or for Registered Securities (if permitted by
the rules and procedures then in effect of Cedel and Euroclear), the existing
temporary global Bearer Security shall be canceled by the Trustee in accordance
with Section 309 of this Indenture. The Company shall deliver to the Trustee
for authentication, and the Trustee shall authenticate and deliver (at an office
or agency located outside the United States), a temporary global Bearer Security
representing the portion of the temporary global Bearer Security not so
exchanged. Until so exchanged in full, the temporary global Bearer Security
shall in all respects be entitled to the same benefits under, and subject to the
same terms and conditions of, this Indenture as definitive Bearer Securities
authenticated and delivered hereunder, except that none of Euroclear, Cedel or
the beneficial owners of the temporary global Bearer Security shall be entitled
to receive payment of interest or other payments thereon or to convert the
temporary Global Bearer Security, if applicable, or any portion thereof, as set
forth in Article Twelve, except as otherwise permitted pursuant to this
indenture or the Securities.
SECTION 305. REGISTRATION, TRANSFER AND EXCHANGE.
-----------------------------------
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
-----------------
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
------------------
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
--------
that no such removal or replacement shall be effective until a successor
----
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment. In the event
that the Trustee shall not be or shall cease to be Security Registrar with
respect to a series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times. There shall be only
one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at any Office or Agency for such series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series denominated as authorized in or pursuant to this Indenture, of a like
-28-
aggregate principal amount bearing a number not contemporaneously outstanding
and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender for cancellation of the Securities to
be exchanged at any applicable Office or Agency for such series. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
Registered Securities of any series may not be exchanged for Bearer Securities.
At the option of the Holder, definitive Bearer Securities of such series
may be exchanged at any time (except as otherwise provided in this Indenture)
for Registered Securities or Bearer Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender for cancellation of the
Bearer Securities to be exchanged at any applicable Office or Agency for such
series located outside the United States, with any and all unmatured Coupons and
any and all matured Coupons in default thereto appertaining; provided that if
-------- ----
and so long as Registered Securities of a series are represented solely by a
permanent global Registered Security, such definitive Bearer Securities will
only be exchangeable for an interest in the permanent global Registered Security
as set forth in this Section 305. If the Holder of a Bearer Security is unable
to produce any such unmatured Coupon or Coupons or matured Coupon or Coupons in
default, such exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company and the Trustee in an amount equal
to the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
is 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 Bearer
Security shall surrender to any Paying Agent any such missing Coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise
-------- -------
provided in Section 1002, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an applicable Office or
Agency for such series located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
Office or Agency for such series in exchange for a Registered Security of such
series and like tenor after the close of business at such Office or Agency on
(i) any Regular Record Date and before the opening of business at such Office or
Agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such Office or Agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the Coupon relating to such Interest Payment Date or proposed date for
payment of Defaulted Interest, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, shall not be payable on such Interest Payment Date or
proposed date for payment of Defaulted Interest, as the case may be, in respect
of the Registered Security issued in exchange for such Bearer Security, but
shall be payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.
-29-
Whenever any Securities are surrendered for exchange as contemplated by the
immediately preceding two paragraphs, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities (with all Coupons, in the case of
the issuance of Bearer Securities), which the Holder making the exchange is
entitled to receive.
If the Holder of definitive Bearer Securities or definitive Registered
Securities requests in writing that such Securities be exchanged for an interest
in the applicable permanent global Registered Security, such Bearer Securities
or Registered Securities (as the case may be) will be exchangeable into an equal
aggregate principal amount of beneficial interest in the permanent global
Registered Security; provided that in the case of definitive Bearer Securities,
-------- ----
such Bearer Securities are only exchanged in the manner set forth in this
Section 305 with respect to the exchange of definitive Bearer Securities for
Registered Securities and in the case of Registered Securities, such exchange is
made in accordance with the rules and procedures then in effect of the
Depository. Upon any exchange as provided in the immediately preceding
sentence, the Trustee shall cancel such Bearer Securities or Registered
Securities (as the case may be) and cause, or direct any custodian for the
permanent global Registered Security to cause, in accordance with the standing
instructions and procedures existing between the Depository and any such
custodian, the aggregate principal amount of Securities represented by the
permanent global Registered Security to be increased accordingly. If no
permanent global Registered Securities are then outstanding, the Company shall
issue and the Trustee shall authenticate a new permanent global Registered
Security in the appropriate principal amount.
Notwithstanding the foregoing, except as otherwise provided in or pursuant
to this Indenture, any permanent global Registered Security shall be
exchangeable for Definitive Securities in registered form only if (i) the
Depository is at any time unwilling, unable or ineligible to continue as
Depository or ceases to be a clearing agency registered under the Exchange Act
(if so required by applicable law or regulation) and a successor depository is
not appointed by the Company within 90 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such permanent global Registered Security shall
be so exchangeable or (iii) an Event of Default has occurred and is continuing
with respect to the Securities. If the beneficial owners of interests in a
permanent global Registered Security are entitled to exchange such interests for
Definitive Securities in registered form as the result of an event described in
clause (i), (ii) or (iii) of the preceding sentence, then without unnecessary
delay but in any event not later than the earliest date on which such interests
may be so exchanged, the Company shall deliver to the Trustee Definitive
Securities in such form and denominations as are required by or pursuant to this
Indenture, and of the same series, containing identical terms and in aggregate
principal amount equal to the principal amount of such permanent global
Registered Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Registered
Security shall be surrendered from time to time by the U.S. Depository or such
other Depository as shall be specified in the Company Order with respect
thereto, and in accordance with instructions given to the Trustee and the U.S.
Depository or such other Depository, as the case may be (which instructions
shall be in writing but need not be contained in or accompanied by an Officers'
Certificate or be accompanied by an Opinion of Counsel), as shall be specified
in the Company Order with respect thereto to the Trustee, as the
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Company's agent for such purpose, to be exchanged, in whole or in part, for
Definitive Securities as described above without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such surrendered permanent global Registered Security, a like aggregate
principal amount of Definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global
Registered Security to be exchanged, which shall be in the form of Registered
Securities; provided, however, that no such exchanges may occur during a
-------- -------
period beginning at the opening of business 15 days before any selection
of Securities of the same series to be redeemed and ending at the close of
business on the day of such selection. Promptly following any such exchange in
part, a permanent global Registered Security for the portions not exchanged
shall be returned by the Trustee to such Depository or the U.S. Depository, as
the case may be, or such other Depository or U.S. Depository referred to above
in accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a permanent global
Registered Security after the close of business at the applicable Office or
Agency for such Security where such exchange occurs on or after (i) any Regular
Record Date for such Security and before the opening of business at such Office
or Agency on the next Interest Payment Date, or (ii) any Special Record Date for
such Security and before the opening of business at such Office or Agency on the
related proposed date for payment of Defaulted Interest, as the case may be,
interest shall not be payable on such Interest Payment Date or proposed date for
payment of Defaulted Interest, as the case may be, in respect of such Registered
Security, but shall be payable on such Interest Payment Date or proposed date
for payment of Defaulted Interest, as the case may be, only to the Person to
whom interest in respect of such portion of such permanent global Registered
Security shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any stamp or similar tax or other governmental charge
and any other expenses (including fees and expenses of the Trustee) that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 905, 1107 or 1202, or
upon repayment in part of any Registered Security pursuant to Article Fifteen,
in each case not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the Company
shall not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the selection for redemption of Securities of
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like tenor and the same series under Section 1103 and ending at the close of
business on the day of such selection, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in part,
except in the case of any Security to be redeemed in part, the portion thereof
not to be redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except, to the extent provided with respect to such Bearer Security,
that such Bearer Security may be exchanged for a Registered Security of like
tenor and the same series, provided that such Registered Security shall be
immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture or (iv) to issue, register the
transfer of or exchange any Security which, in accordance with its terms, has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security; provided,
--------
however, that any Bearer Security or any Coupon shall be delivered only outside
-------
the United States and, if the Securities of such series are listed on the London
Stock Exchange or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, such
delivery shall occur at the Office or Agency located in London, Luxembourg or
any other required city located outside the United States, as the case may be,
so long as Securities of such series are listed on such exchange; and provided,
--------
further, that all Bearer Securities shall be delivered and received in person.
-------
If there be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or Coupon, and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security or Coupon has been acquired by a bona
fide purchaser, the Company shall execute and, upon the Company's request the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a destroyed, lost or stolen Coupon appertains with all appurtenant Coupons
not destroyed, lost or stolen, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen Coupon appertains; provided, however,
-------- -------
that any Bearer Security or any Coupon shall be delivered only outside the
United States and, if the Securities of such series are listed on the London
Stock Exchange or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, such
delivery shall occur at the Office or Agency located in London, Luxembourg or
any other required city located outside the United States, as the case may be,
so long as Securities of such series are listed on
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such exchange; and provided, further, that all Bearer Securities shall be
-------- -------
delivered and received in person.
Notwithstanding the foregoing provisions of this Section 306, in case any
mutilated, destroyed, lost or stolen Security or Coupon has become or will
become due and payable within seven (7) days, the Company in its discretion, but
subject to any conversion rights, may, instead of issuing a new Security, pay
such Security or Coupon; provided, however, that payment of principal of, any
-------- -------
premium or interest on or any Additional Amounts with respect to any Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at the applicable Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any stamp or similar tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security with any Coupons appertaining thereto issued pursuant to
this Section 306 in lieu of any mutilated, destroyed, lost or stolen Security,
or in exchange for a Security to which a mutilated, destroyed, lost or stolen
Coupon appertains shall constitute a separate obligation of the Company, whether
or not the mutilated, destroyed, lost or stolen Security and Coupons
appertaining thereto or the mutilated, destroyed, lost or stolen Coupon shall be
at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
such series and any Coupons duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this
Indenture with respect to particular Securities or generally, shall be exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities or Coupons.
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
-------------------------------------------------------------
Interest and Certain Additional Amounts Preserved.
-------------------------------------------------
(a) Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made (i) by check
mailed or delivered, in the case of Registered Securities, to the address of the
Person entitled thereto as such address shall appear in the Security Register
or, in the case of Bearer Securities, upon presentation and surrender of the
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appropriate Coupon appertaining thereto, or (ii) at the option of the Company
with the consent of any Paying Agent, (1) in the case of a Bearer Security, upon
presentation and surrender of the applicable Coupon at an applicable Office or
Agency for such series outside the United States, except as otherwise provided
in Section 1002, by transfer to an account maintained by the payee with a bank
located outside the United States, or (2) in the case of a Registered Security,
by transfer to an account maintained by the payee with a bank located inside the
United States.
Unless otherwise provided in or pursuant to this Indenture, in case a
Bearer Security is surrendered in exchange for a Registered Security after the
close of business at the applicable Office or Agency for such Security on any
Regular Record Date therefor and before the opening of business at such Office
or Agency on the next succeeding Interest Payment Date therefor, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date and interest shall not be payable on such Interest Payment Date in
respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Bearer Security shall, except as
otherwise provided in Section 1002, be payable only at an Office or Agency for
such Securities located outside the United States.
Interest on any temporary global Bearer Security shall be payable only
after the issuance of a Definitive Security for which it is exchangeable as
provided in Section 304, except as otherwise provided pursuant to this Indenture
or the Securities.
(b) Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
-------------------
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Person in whose name such Registered Security (or a Predecessor Security
thereof) shall be registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on such Registered Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as in this clause
provided. Thereupon, the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after receipt by the Trustee of the notice of the proposed payment. The Trustee
shall
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promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of such Registered Security (or a
Predecessor Security thereof) at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The Trustee
may, in its discretion, in the name and at the expense of the Company cause a
similar notice to be published at least once in an Authorized Newspaper of
general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such Registered
Security (or a Predecessor Security thereof) shall be registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2). In case a Bearer Security is surrendered at the
applicable Office or Agency for such Security in exchange for a Registered
Security after the close of business at such Office or Agency on any Special
Record Date and before the opening of business at such Office or Agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the Coupon relating to such Defaulted Interest and
Defaulted Interest shall not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which such Security may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(c) In the case of any Registered Security which is converted into Common
Stock pursuant to Article Twelve after any Regular Record Date and on or prior
to the next succeeding Interest Payment Date (other than any Registered Security
whose Maturity is prior to such Interest Payment Date), interest whose Stated
Maturity is on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
such Registered Security (or one or more Predecessor Securities) is registered
at the close of business on such Regular Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any
Security which is converted pursuant to Article Twelve, accrued interest from
the immediately preceding Interest Payment Date until the Conversion Date shall
be payable to the converting Holder within five Business Days after the
Conversion Date. Upon presentment for conversion of any Securities pursuant to
Article Twelve, the Paying Agent shall promptly notify the Company of the amount
of any accrued interest due and owing thereon and the Company shall pay to the
Paying Agent an amount sufficient to pay the accrued interest due on such
Securities and Additional Amounts, if any, thereon, and the Paying Agent shall
apply the amounts so paid to it to the payment of such accrued interest and
Additional Amounts, if any, thereon in accordance with the terms of the
Securities.
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(d) Subject to the foregoing provisions of this Section 307 and Section
305, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
---------------------
Title to any Bearer Security or Coupon shall pass by delivery. The
Company, the Trustee, the Paying Agent and any other agent of the Company, the
Trustee or the Paying Agent may treat the bearer of any Bearer Security or the
temporary global Bearer Security and the bearer of any Coupon as the absolute
owner of such Security or Coupon, as the case may be, for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or Coupon be overdue, and neither the
Company the Trustee, the Paying Agent nor any other agent of the Company, the
Trustee or the Paying Agent shall be affected by notice to the contrary.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
shall treat the Person in whose name such Registered Security is registered in
the Security Register as the absolute owner of such Registered Security for the
purpose of receiving payment of principal of, any premium and (subject to
Sections 305 and 307) interest on and any Additional Amounts with respect to
such Registered Security and for all other purposes whatsoever, whether or not
any payment with respect to such Registered Security shall be overdue, and
neither the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depository or Common Depository shall have any rights under this
Indenture with respect to such global Security, and such Depository or Common
Depository may be treated by the Company, the Trustee, and any agent of the
Company or the Trustee as the owner of such global Security for all purposes
whatsoever. None of the Company, the Trustee, any Paying Agent, any Conversion
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Section 309. Cancellation.
------------
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be canceled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities or Coupons previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities or Coupons so delivered shall be canceled
promptly by the Trustee. No Securities or Coupons
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shall be authenticated in lieu of or in exchange for any Securities or Coupons
canceled as provided in this Section 309, except as expressly permitted by or
pursuant to this Indenture. All canceled Securities and Coupons held by the
Trustee shall be destroyed by the Trustee, unless by a Company Order the Company
directs their return to it.
Section 310. Computation of Interest.
-----------------------
Except as otherwise provided in or pursuant to this Indenture or in the
Securities of any series, interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
-------------
The Company in issuing Registered Securities may use "CUSIP" numbers (if
then generally in use) in addition to serial numbers, and in issuing Bearer
Securities may use "ISIN" numbers (if then generally in use); if so, the Trustee
shall use such "CUSIP" and "ISIN" numbers in addition to serial numbers in
notices of redemption and repayment as a convenience to Holders; provided that
-------- ----
any such notice may state that no representation is made as to the correctness
of such CUSIP and ISIN numbers either as printed on the Securities or as
contained in any notice of a redemption or repayment and that reliance may be
placed only on the serial or other identification numbers printed on the
Securities, and any such redemption or repayment shall not be affected by any
defect in or omission of such CUSIP or ISIN numbers.
Section 312. Notification of Withholding.
---------------------------
The Company shall notify the Trustee in writing of the necessity, if any, to
withhold any amounts from payments to Holders (and the amount of any such
withholding).
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
--------------------------
Upon the direction of the Company by a Company Order, this Indenture shall
cease to be of further effect with respect to any series of Securities specified
in such Company Order and any Coupons appertaining thereto (except as to any
surviving rights of conversion, or registration of transfer or exchange or
replacement of Securities herein expressly provided for and any right to receive
Additional Amounts and the Company's obligations to the Trustee pursuant to
Section 606), and the Trustee, on receipt of a Company Order, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when
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(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in exchange
for Registered Securities of such series and maturing after such exchange
whose surrender is not required or has been waived as provided in ▇▇▇▇▇▇▇
▇▇▇, (▇▇) Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in ▇▇▇▇▇▇▇
▇▇▇, (▇▇▇) Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date whose surrender
has been waived as provided in Section 1106, and (iv) Securities and
Coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and any Coupons appertaining thereto
not theretofore delivered to the Trustee or the Paying Agent for
cancellation (other than Securities or Coupons referred to in clauses (i)
through (iii) of clause (A) above)
(i) have become due and payable, or
(ii) will have become due and payable at their Stated Maturity within
one year and such Securities are not convertible into or exchangeable for
other securities, or
(iii) if redeemable at the option of the Company, such Securities are
not convertible into or exchangeable for other securities and are to be
called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii), or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds
(immediately available to the Holders in the case of clause (i) above) in
trust for such purpose, money in the Currency in which such Securities are
payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation, including the
principal of, any premium and interest on, and, to the extent that the
Securities of such series provide for the payment of Additional Amounts
thereon and the amount of any such Additional Amounts is at the time of
deposit reasonably determinable by the Company (in the exercise by the
Company of its sole and absolute discretion), any Additional Amounts with
respect to such Securities and any Coupons appertaining thereto, to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Maturity thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series and any Coupons appertaining thereto; and
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(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 606, the obligations of the Company to any Authenticating
Agent under Section 612, and, if money shall have been deposited with the
Trustee pursuant to clause (1)(B) of this Section, the obligations of the
Company and the Trustee with respect to the Securities of such series under
Sections 305, 306, 403, 1002 and 1003, and with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 1004 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 401(B)), shall survive.
Section 402. Defeasance and Covenant Defeasance.
----------------------------------
(1) Unless, pursuant to Section 301, provision is made for either or both
of (i) defeasance of the Securities of or within a series under clause (2) of
this Section 402 or (ii) covenant defeasance of the Securities of or within a
series under clause (3) of this Section 402, such provisions, together with the
other provisions of this Section 402, shall not be applicable to such Securities
and any Coupons appertaining thereto.
(2) Upon the Company's exercise of the above option applicable to this
Section 402(2) with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
----------
Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any Coupons appertaining thereto,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 402 and the other Sections of this Indenture referred
to in clauses (i) and (ii) below, and to have satisfied all of its other
obligations under such Securities and any Coupons appertaining thereto and this
Indenture insofar as such Securities and any Coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of such Outstanding Securities and any Coupons appertaining thereto to
receive, solely from the trust fund described in clause (4) of this Section 402
and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, with respect to, such Securities and any Coupons appertaining
thereto when such payments are due, (ii) the obligations of the Company
-39-
and the Trustee with respect to such Securities under Sections 304, 305, 306,
403, 1002 and 1003, with respect to the payment of Additional Amounts, if any,
on such Securities as contemplated by Section 1004 (but only to the extent that
the Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to Section 402(4)(a)
below), (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, (iv) any rights of conversion or exchange of such Securities and (v)
this Section 402. The Company may exercise its option under this Section 402(2)
notwithstanding the prior exercise of its option under clause (3) of this
Section 402 with respect to such Securities and any Coupons appertaining
thereto.
(3) Upon the Company's exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 1005 and Section 102 and,
to the extent specified pursuant to Section 301, any other covenant applicable
to such Securities, with respect to such Outstanding Securities and any Coupons
appertaining thereto on and after the date the conditions set forth in clause
(4) of this Section 402 are satisfied (hereinafter, "covenant defeasance"), and
-------------------
such Securities and any Coupons appertaining thereto shall thereafter be deemed
to be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with any such covenant, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any Coupons
appertaining thereto, the Company 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 501(4) or otherwise,
as the case may be, but, except as specified above, the remainder of this
Indenture and such Securities and Coupons appertaining thereto, shall be
unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or
(3) of this Section 402 to any Outstanding Securities of or within a series and
any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 607
who shall agree to comply with the provisions of this Section 402 applicable to
it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Securities and any Coupons appertaining thereto, (i) an
amount in Dollars, or (ii) Government Obligations applicable to such Securities
and Coupons appertaining thereto (determined on the basis of the Currency in
which such Securities and Coupons appertaining thereto are then specified as
payable at Stated Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of principal of (and
premium, if any) and interest, if any, on such Securities and any Coupons
appertaining thereto, money in an amount, or (iii) a combination thereof, in any
case, in an amount, sufficient, without
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consideration of any reinvestment of such principal and interest, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (y) the principal of (and premium, if any) and interest, if any,
on, and, to the extent that such Securities provide for the payment of
Additional Amounts thereon and the amount of any such Additional Amounts is at
the time of deposit reasonably determinable by the Company, any Additional
Amounts with respect to, such Outstanding Securities and any Coupons
appertaining thereto on the Stated Maturity of such principal or installment of
principal or interest and (z) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any Coupons appertaining
thereto on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities and any Coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which it
is bound.
(c) No Default or Event of Default with respect to such Securities and any
Coupons appertaining thereto shall have occurred and be continuing on the date
of such deposit and, with respect to defeasance only, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under clause (2) of this Section 402, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from the Internal Revenue Service a letter ruling,
or there has been published by the Internal Revenue Service a revenue ruling, or
(ii) since the date of execution of this Indenture, there has been a change in
the applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of such Outstanding
Securities and any Coupons appertaining thereto will not recognize income, gain
or loss for Federal income tax purposes as a result of such defeasance and will
be subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 402, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Securities and any Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance or covenant defeasance under clause (2) or (3) of
this Section 402 (as the case may be) have been complied with.
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(g) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that neither such Securities nor any other Securities
of the same series, if then listed on any securities exchange, will be delisted
as a result of such deposit.
(h) Such defeasance or covenant defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(i) Such defeasance or covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act unless such trust shall be registered under such
Act or exempt from registration thereunder.
(j) Notwithstanding any other provisions of this Section 402(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee-- collectively for purposes of this Section 402(5) and
Section 403, the "Trustee") pursuant to clause (4) of Section 402 in respect of
-------
any Outstanding Securities of any series and any Coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any Coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any Coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee and its officers,
directors, employees and agents against any tax, fee or other charge, imposed on
or assessed against the Government Obligations deposited pursuant to this
Section 402 or the principal or interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders
of such Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (4) of this Section 402 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Section 402.
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Section 403. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations deposited with the Trustee pursuant to Section 401 or
402 shall be held in trust and applied by it, in accordance with the provisions
of the Securities, the Coupons appertaining thereto, and this Indenture, as
applicable, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, interest
and Additional Amounts for whose payment such money has or Government
Obligations have been deposited with or received by the Trustee; but such money
and Government Obligations need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of any
----------------
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) unless
such event is specifically deleted or modified in or pursuant to the
supplemental indenture, a Company Board Resolution or Company Officers'
Certificate establishing the terms of such series pursuant to this Indenture:
(1) default in the payment of any interest on, or any Additional Amounts
payable in respect of any interest on, any Security of such series when such
interest or such Additional Amounts, as the case may be, become due and payable,
and continuance of such default for a period of 10 days; or
(2) default in the payment of the principal of or premium, if any, on, or
any Additional Amounts payable in respect of the principal of or premium, if
any, on any Security of such series when due upon Maturity (whether upon
redemption or otherwise); or
(3) default in the payment of any sinking fund payment, or analogous
payment, when and as due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture or any Security of such series (other than a
covenant or warranty for which the consequences of breach or nonperformance are
addressed elsewhere in this Section 501 or in the Securities or in a covenant or
warranty which has expressly been included in this Indenture or a Security of
that series, whether or not by means of a supplemental Indenture, solely for the
benefit of Securities of a series other than such series), and continuance
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of such default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of such series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the Company pursuant to or under or within the meaning of any
Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of an order for relief against it in an
involuntary case or proceeding or the commencement of any case against it;
(c) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(d) makes a general assignment for the benefit of its creditors;
(e) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
(f) consents to the filing of such petition or the appointment of or
taking possession by a Custodian; or
(6) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(a) is for relief against the Company in an involuntary case or
proceeding, or adjudicates the Company insolvent or bankrupt;
(b) appoints a Custodian of the Company or for any substantial part of
their respective property; or
(c) orders the winding up or liquidation of the Company;
and the order or decree remains unstayed and in effect for 60
consecutive days; or
(7) a default by the Company (including a default with respect to
Securities of any series other than that series) under any indenture, including
this Indenture, or instrument evidencing, or under which the Company has at the
date of this Indenture or shall hereafter have, any indebtedness for money
borrowed with a principal amount then outstanding in excess of $25,000,000 or
such other amount as may be specified in the Company's Board Resolutions or
Officers' Certificate establishing the series (or the equivalent in any other
currency) shall happen and be continuing and such indebtedness shall have been
accelerated so that the same shall be or become due and payable prior to the
date on which the same would otherwise have become due and payable, or a default
in payment of such indebtedness at its stated maturity shall have
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occurred, and such indebtedness shall not have been discharged or such
acceleration shall not be rescinded or annulled within 20 days after written
notice thereof shall have been given, by registered or certified mail, to the
Company by the Trustee, or to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities of that
series; provided, however, that if such default under such indenture or
-------- -------
instrument shall be remedied or cured by the Company or waived by the holders of
such indebtedness, then the Event of Default hereunder by reason thereof shall
be deemed likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or any of the Holders;
provided, further, however, that subject to the provisions of Section 601, the
-------- -------
Trustee will not be considered to have knowledge of any default by the Company
under this Section 501 unless the Trustee shall have received written or actual
notice of such default; or
(8) any other Event of Default provided in or pursuant to this Indenture
with respect to Securities of such series.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any similar Federal
--------------
or state law for the relief of debtors. "Custodian" means any receiver,
---------
trustee, assignee, liquidator, sequestrator, custodian or similar official under
any Bankruptcy Law.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing throughout the period permitted under this
Indenture or any supplemental indenture to cure such default, then the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
such series, or such lesser amount as may be provided for in the Securities of
such series, to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or such lesser amount shall become immediately due
and payable.
Notwithstanding any other provision of this Section 502, if an Event of
Default specified in Section 501(5) or 501(6) occurs, all principal of, any
premium and interest on, and any Additional Amounts on the Securities then
Outstanding shall be immediately due and payable without any declaration or
other act on the part of the Trustee or the Holders.
At any time after Securities of any series have been accelerated and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article Five provided, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such
series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
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(a) all overdue installments of any interest on any Securities of such
series and any Coupons appertaining thereto and any Additional Amounts with
respect thereto,
(b) the principal of and any premium on any Securities of such series which
have become due otherwise than by such declaration of acceleration and any
Additional Amounts with respect thereto and, to the extent the payment of such
interest is lawful, interest thereon at the rate or rates borne by or provided
for in such Securities,
(c) to the extent that payment of such interest is lawful, interest upon
overdue installments of any interest and any Additional Amounts with respect
thereto at the rate or rates borne by or provided for in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and all other amounts due the Trustee under Section 606; and
(2) all Events of Default with respect to Securities of such series, other
than the non-payment of the principal of, any premium and interest on, and any
Additional Amounts with respect to Securities of such series which shall have
become due solely by such declaration of acceleration, shall have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any installment of interest on or any
Additional Amounts with respect to any Security or any Coupon appertaining
thereto when such interest or Additional Amounts shall have become due and
payable and such default continues for a period of 10 days, or
(2) default is made in the payment of the principal of or any premium on
any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 606.
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If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph, forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
Coupons appertaining thereto by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding, including:
(1) to file and prove a claim for the whole amount, or such lesser amount
as may be provided for in the Securities of such series, of the principal and
any premium, interest and Additional Amounts owing and unpaid in respect of the
Securities and any Coupons appertaining thereto and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents or counsel) and of the
Holders of Securities or any Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
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advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding; provided, however, that the
-------- -------
Trustee may, on behalf of the Holders of Securities or any Coupons, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities or
--------------------------------------------------------------
Coupons.
-------
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article Five shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest and
Additional Amounts in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Securities and
Coupons for principal and any premium, interest and Additional Amounts,
respectively;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 507. Limitations on Suits.
--------------------
No Holder of any Security of any series or any Coupons appertaining thereto
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, the
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Securities of any series or any Coupons appertaining thereto, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of such series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal and Any
-----------------------------------------------------------
Premium, Interest and Additional Amounts.
----------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of any
Security or Coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of, any premium and (subject to Section 307)
interest on, and any Additional Amounts with respect to such Security or such
Coupon, as the case may be, on the respective Stated Maturity or Maturities
therefor specified in such Security or Coupon (or, in the case of redemption, on
the Redemption Date or, in the case of repayment at the option of such Holder if
provided in or pursuant to this Indenture, on the Repayment Date) and to convert
such Security in accordance with Article Twelve (if conversion is permitted by
the terms of such Security), and to institute suit for the enforcement of any
such payment and right to convert, and such rights shall not be impaired without
the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder of a Security or a Coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder,
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then and in every such case the Company, the Trustee and each such Holder shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and each such Holder shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or Coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to each and every Holder of a Security or a Coupon is intended to be
exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article Five or by law to the Trustee or to any Holder of a Security or a Coupon
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or (subject to the limitations contained in this Indenture) by such
Holder, as the case may be.
Section 512. Control by Holders of Securities.
--------------------------------
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series and any Coupons appertaining thereto, provided that
-------- ----
(1) such direction shall not be in conflict with any rule of law or with
this Indenture or with the Securities of such series,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) such Holders have offered the Trustee an indemnity reasonably
satisfactory to it against any loss, cost, liability or expense that might been
incurred by the Trustee in following such direction.
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Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or interest on, or any
Additional Amounts with respect to, any Security of such series or any Coupons
appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Waiver of Usury, Stay or Extension Laws.
---------------------------------------
The Company covenants that (to the extent that it may lawfully do so) it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company expressly waives (to the
extent that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 515. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 515 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right to convert any Security in
accordance with Article Twelve.
-51-
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee; Certain Duties and Responsibilities.
---------------------------------------------------------------
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or other paper or
document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (in each case,
other than delivery of any Security, together with any Coupons appertaining
thereto, to the Trustee for authentication and delivery pursuant to Section 303
which shall be sufficiently evidenced as provided therein) and any resolution of
the Board of Directors of the Company shall be sufficiently evidenced by a Board
Resolution of the Company;
(3) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence shall be
herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by or pursuant to this Indenture at the request or
direction of any of the Holders of Securities of any series or any Coupons
appertaining thereto pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine,
during business hours
-52-
and upon reasonable notice, the books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(8) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(9) no provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(a) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(b) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Securities at the time Outstanding 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
(c) this paragraph (9) shall not be construed to limit the effect of
paragraph (8) of this Section 601.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act and this Indenture. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
indemnity reasonably satisfactory to it against such risk or liability is not
reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 601.
Section 602. Notice of Defaults.
------------------
Within 90 days after the occurrence of any Default (actually known to a
Responsible Officer of the Trustee) hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of Securities of
such series entitled to receive reports pursuant to Section 703(3), notice of
such Default hereunder known to the Trustee, unless such Default shall
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have been cured or waived; provided, however, that, except in the case of a
-------- -------
default in the payment of the principal of (or premium, if any), or interest, if
any, on, or Additional Amounts or any sinking fund or purchase fund installment
with respect to, any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
best interest of the Holders of Securities and Coupons of such series, and
provided, further, that in the case of any Default of the character specified in
-------- -------
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 60 days after the occurrence thereof.
Section 603. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any Coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or Coupons appertaining thereto or the Common Stock issuable upon the
conversion of Securities in accordance with the provisions of Article Twelve,
except that the Trustee represents that it is duly authorized to execute and
deliver this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
Section 604. May Hold Securities; Act as Trustee Under Other Indenture.
---------------------------------------------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Subject to Section 310(b) and 311 of the Trust Indenture Act, the Trustee
may become and act as trustee under other indentures under which other
securities, or certificates of interest or participation in other securities, of
the Company or any Subsidiary thereof are outstanding in the same manner as if
it were not Trustee hereunder.
Section 605. Money Held in Trust.
-------------------
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
-54-
Section 606. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation as
shall be agreed in writing between the Company on the one hand and the Trustee
on the other for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its officers, directors, employees and
agents for, and to hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder, except to the extent that any such loss,
liability or expense was due to the Trustee's negligence or bad faith. The
indemnification provided for herein shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee.
As security for the performance of the obligations of the Company under
this Section 606, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501 is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. "Trustee" for purposes
-------
of this Section 606 shall include any predecessor Trustee but the negligence or
bad faith of any Trustee shall not affect the rights of any other Trustee under
this Section 606.
Section 607. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States, eligible under
Section 310(a)(1) of the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the Trust
Indenture Act) of at least $50,000,000 and subject to supervision or examination
by Federal or state authority. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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Section 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(3) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed upon
it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Company or
any Holder of a Security of such series who has been a bona fide Holder of
a Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 607 and shall
fail to resign after written request therefor by the Company or any such
Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged
to be bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board
Resolution, may remove the Trustee with respect to all Securities or the
Securities of such series, or (ii) subject to Section 315(e) of the Trust
Indenture Act, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of
-56-
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 609. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
609, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 609, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(6) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
(7) The retiring Trustee shall not be liable for any of the acts or
omissions of any successor Trustee appointed hereunder.
(8) No appointment of a successor Trustee shall be effective until all
fees, charges and expenses of the retiring Trustee not subject to any good faith
dispute, have been paid.
Section 609. Acceptance of Appointment by Successor.
--------------------------------------
(1) Upon the appointment hereunder of any successor Trustee with respect to
all Securities, such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties hereunder of the retiring Trustee; but, on the request of the Company or
such successor Trustee, such retiring Trustee, upon payment of its charges,
shall execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and, subject to
Section 1003, shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 606.
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(2) Upon the appointment hereunder of any successor Trustee with respect to
the Securities of one or more series, the Company, the retiring Trustee and
such successor Trustee shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, such successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any notice
given to, or received by, or any act or failure to act on the part of any other
Trustee hereunder, and, upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates other than as hereinafter
expressly set forth, and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges with respect to the Securities of that or those series to
which the appointment of such successor relates and subject to Section 1003
shall duly assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money held by the
retiring Trustee hereunder with respect to the securities of that or those
series to which the appointment of such successor Trustee relates, subject to
its claim, if any, provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor Trustee
unless at the time of such acceptance such successor Person shall be qualified
and eligible under this Article Six.
Section 610. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any Corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation
-58-
to which the Trustee shall be a party, or any Corporation succeeding to all or
all of the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided such Corporation shall be otherwise qualified
and eligible under this Article Six, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated but not delivered by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 611. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company or any
other obligor upon the Securities, the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company or any such other obligor.
Section 612. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint one or more Authenticating Agents acceptable to the
Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment, or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Except in the case of an original issuance or in the case of
replacement of lost, stolen or destroyed securities, wherever reference is made
in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as
provided in or pursuant to this Indenture, shall at all times be a corporation
that would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more series
of Securities pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: [NAME OF TRUSTEE],
-------------------- As Trustee
By: [NAME OF AUTHENTICATION AGENT]
As Authenticating Agent
By:
-----------------------
Authorized Officer
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If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section 612 an Authenticating Agent having an
office in a Place of Payment designated by the Company with respect to such
series of Securities.
Section 613. Conflicting Interests.
---------------------
If the Trustee has or shall acquire any conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or a trustee under other indentures between
the Company or a Subsidiary thereof and the Trustee that have not been satisfied
and discharged and that may be excluded by the proviso to Section 310(b)(1) of
the Trust Indenture Act.
Section 614. Protection of Agents.
---------------------
Any Authenticating Agent, Conversion Agent, Paying Agent or Securities
Registrar hereunder shall be entitled to all of the rights, immunities,
indemnities and protections afforded to the Trustee hereunder.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
In accordance with Section 312(a) of the Trust Indenture Act, with respect
to each series of the Securities, the Company shall furnish or cause to be
furnished to the Trustee:
(1) semi-annually, not later than 15 days after the Regular Record Date or
upon such other dates as are set forth in or pursuant to the Board Resolution,
Officers' Certificate or indenture supplemental hereto authorizing such series,
a list for each series of Securities, in such form as the Trustee may reasonably
require, of the names and addresses of Holders of Registered Securities as of
the applicable date, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
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Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of the Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights, privileges and obligations of the Trustee, shall be as provided by the
Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee, nor any agent of any of them, shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 312(c) of the Trust Indenture
Act, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(1) Within 60 days after July 15 of each year commencing with the
first July 15 following the first issuance of Securities pursuant to
Section 301, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture
Act, a brief report dated as of such July 15 with respect to any of the
events specified in said Section 313(a) which may have occurred since the
later of the immediately preceding July 15 and the date of this Indenture.
(2) The Trustee shall transmit to Holders the reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner specified therein.
(3) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
Section 704. Reports by Company.
------------------
The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information,
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documents or reports pursuant to either of said Sections, then it shall
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the Trustee,
in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease all or substantially all of its properties and assets
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease all or substantially all
of its properties and assets to the Company unless either:
(a) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, all or substantially
all of the properties and assets of the Company shall be (i) a corporation,
limited liability company, partnership or trust organized and validly
existing under the laws of the United States or (ii) a corporation, limited
liability company, partnership or trust organized and validly existing
under the laws of a jurisdiction other than the United States (a "Foreign
-------
Entity") that shall expressly assume, by an indenture supplemental hereto
------
executed and delivered to the Trustee, in form reasonably satisfactory to
the Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest and Other Additional Amounts on all the Securities and
Coupons and the performance and observance of every covenant of this
Indenture on the part of the Company to be performed or observed and shall
have provided for conversion rights in accordance with Article Twelve;
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(b) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or one of its
Subsidiaries as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 802. Successor Corporation Substituted.
---------------------------------
Upon any consolidation by the Company with or merger by the Company into
any other Person or any conveyance, transfer or lease of all or substantially
all of the properties and assets of the Company, in accordance with Section 801,
the successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made, shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or Coupons, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (as shall be specified in such supplemental
indenture or indentures and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants are being included
solely for the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
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(3) to add to or change any of the provisions of this Indenture to provide
that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of, any premium or
interest on or any Additional Amounts with respect to Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be exchanged for Bearer Securities of additional authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided any such action shall not adversely affect the
interests of the Holders of Securities of any series or any Coupons appertaining
thereto in any material respect; or
(4) to establish the form or terms of Securities of any series and any
Coupons appertaining thereto as permitted by Sections 201 and 301; or
(5) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 609; or
(6) to cure any ambiguity or to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture which shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding or any Coupons appertaining thereto in
any material respect; or
(7) to add any additional Events of Default with respect to all or any
series of Securities (as shall be specified in such supplemental indenture and
if such additional Events of Default are to be for the benefit of less than all
series of Securities, stating that such additional Event of Default are
expressly being included solely for the benefit of such series); or
(8) to supplement any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and discharge of any
series of Securities pursuant to Article Four, provided that any such action
shall not adversely affect the interests of any Holder of a Security of such
series and any Coupons appertaining thereto or any other Security or Coupon in
any material respect; or
(9) to secure the Securities; or
(10) to amend or supplement any provision contained herein or in any
supplemental indenture (which amendment or supplement may apply to one or more
series of Securities or to one or more Securities within any series as specified
in such supplemental indenture or indentures), provided that such amendment or
supplement does not apply to any Outstanding Security issued prior to the date
of such supplemental indenture and entitled to the benefits of such provision or
modify the rights of the Holder of any such Security with respect to such
provision.
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Section 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of the Securities of such series or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
-------- -------
indenture, without the consent of the Holder of each Outstanding Security
affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of principal or interest on or any Additional Amounts with
respect to, any Security, or any sinking fund or analogous payment in
respect thereof, or reduce the principal amount thereof or the rate (or
modify the calculation of such rate) of interest thereon or any Additional
Amounts with respect thereto, or any premium payable upon the redemption
thereof or otherwise, or change the obligation of the Company to pay
Additional Amounts pursuant to Section 1004, or reduce the amount of the
principal of any Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, adversely
affect the right of repayment at the option of any Holder as contemplated
by Article Fifteen, or change the provisions of Article Ten relating to
Place of Payment for Bearer Securities being located outside the United
States, or the Currency in which the principal of, any premium or interest
on, or any Additional Amounts with respect to any Security or any sinking
or analogous fund payment in respect thereof, is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of repayment at the option of the Holder,
on or after the Repayment Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1604 for quorum or voting,
or
(3) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which shall have been included expressly and solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such
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series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
As a condition to executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article Nine or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture and an
Officers' Certificate stating that all conditions precedent to the execution of
supplemental indenture have been fulfilled. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company, and such securities authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 906. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Any Premium, Interest and Additional
----------------------------------------------------------
Amounts.
-------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of, any premium
and interest on and any Additional Amounts with respect to the Securities of
each series in accordance with the terms thereof, any Coupons appertaining
thereto and this Indenture. Any interest due on any Bearer Security on or
before the Maturity thereof, and any Additional Amounts payable with respect to
such interest, shall be payable only upon presentation and surrender of the
Coupons appertaining thereto for such interest as they severally mature.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in each Place of Payment for any series of
Securities, an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Registered Securities may be surrendered for conversion,
where Bearer Securities may be surrendered for conversion in the circumstances
described below (and not otherwise) and where notices and demands to or upon the
Company in respect of the Securities of such series relating thereto and this
Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company shall maintain, subject to any laws or regulations
applicable thereto, an Office or Agency in a Place of Payment and Place of
Conversion for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto, may be
presented and surrendered for payment or conversion; provided, however, that if
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the Securities of such series are listed on the London Stock Exchange or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company shall maintain a
Paying Agent and a Conversion Agent in London, Luxembourg or any other required
city located outside the United States, as the case may be, so long as the
Securities of such series are listed on such exchange. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such Office or Agency. If at any time the Company shall fail to
maintain any such required Office or Agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of such series and any Coupons appertaining thereto may be
presented and surrendered for payment or conversion at the place specified for
that purpose with respect to such Securities as provided in or pursuant to this
Indenture, and the Company hereby appoint the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no payment
of principal, premium, interest or Additional Amounts with respect to Bearer
Securities (including payments by reason of the conversion thereof) shall be
made at any Office or Agency in the United States or by check mailed to any
address in the United States
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or by transfer to an account maintained with a bank located in the United
States; provided, however, that if amounts owing with respect to any Bearer
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Securities shall be payable in Dollars, payment of principal of, any premium or
interest on and any Additional Amounts with respect to any such Security may be
made, and any Bearer Securities may be surrendered for conversion, at the
Corporate Trust Office of the Trustee or any Office or Agency designated by the
Company in the Borough of Manhattan, The City of New York, if (but only if)
payment of the full amount of such principal, premium, interest or Additional
Amounts, or surrender of Bearer Securities for conversion, at all offices
outside the United States maintained for such purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions on the full payment or receipt of such
amounts in Dollars as determined by the Company, or on surrender of any Bearer
Securities for conversion.
The Company may also from time to time designate one or more other Offices
or Agencies where the Securities of one or more series, may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligation to maintain an Office or Agency
in each Place of Payment and Place of Conversion for Securities of any series
for such purposes. The Company shall give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment and the Place
of Conversion for each series of Securities (other than those issued as Bearer
Securities), the Borough of Manhattan, The City of New York, and initially
appoint the Corporate Trust Office of the Trustee as the Company's Office or
Agency in the Borough of Manhattan, The City of New York for such purpose. The
Company may subsequently appoint a different Office or Agency in the Borough of
Manhattan, The City of New York for the Securities of any series. Unless
otherwise provided in or pursuant to this Indenture, the Company hereby
designates as the Place of Payment and the Place of Conversion for Bearer
Securities, to be London, England, and initially appoint the office of the
Trustee in London as the Office or Agency for such purpose and initially appoint
the office of the Trustee in London as its Paying Agent and Conversion Agent in
London.
If at any time the Company shall fail to maintain any such required
office or agency, or shall fail to furnish the Trustee with the address thereof,
presentations and surrenders may be made and notices and demands may be served
on the Corporate Trust Office of the Trustee, except that Bearer Securities and
Coupons may be presented and surrendered for payment and conversion to the
Paying Agent in London at its office in the City of London, England or other
Paying Agent or Conversion Agent outside the United States, and the Company
hereby appoints the Paying Agent in London as its agent to receive such
respective presentations, surrenders, notices and demands.
Section 1003. Money for Securities Payments to be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in
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trust for the benefit of the Persons entitled thereto a sum in Dollars
sufficient to pay the principal or any premium, interest or Additional Amounts
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it shall, on or prior to each due date of the principal of, any
premium or interest on or any Additional Amounts with respect to any Securities
of such series, deposit with any Paying Agent a sum in Dollars sufficient to pay
the principal or any premium, interest or Additional Amounts so becoming due,
such sum to be held in trust for the benefit of the Persons entitled thereto,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities
of such series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of the principal of, any premium or interest on or any Additional
Amounts with respect to the Securities of such series;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(4) indemnify the Trustee for any loss, cost, liability, or expense
caused by any error, act or omission of the Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order of the Company direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited
with the Trustee or any Paying Agent, or then held by the Company in trust for
the payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any Security of any series or any Coupon appertaining
thereto and remaining unclaimed for two years after
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such principal or any such premium or interest or any such Additional Amounts
shall have become due and payable shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be paid
to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security or any Coupon
appertaining thereto shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
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Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment for such series or to be mailed to Holders of
Registered Securities of such series, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication or mailing, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. Additional Amounts.
------------------
Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, all payments of principal of, premium, if any, and
interest on Securities of any series to a Holder thereof who is not a United
States person shall be made without set-off, counterclaim, fees, liabilities or
similar deductions (including payments on redemption and repayment), and free
and clear of, and without deduction or withholding for, taxes, levies, imposts,
duties, assessments, charges or fees of whatsoever nature now or hereafter
imposed, levied, collected, deducted, withheld or assessed by or on behalf of
the Government of the United States, or any state or other political subdivision
or taxing authority thereof or therein ("Taxes"). Except as otherwise provided
-----
in or pursuant to this Indenture or the Securities of any series, if the Company
or any agent of the Company is required by law or regulation to make any
deduction or withholding for or on account of Taxes, the Company shall pay such
additional amounts ("Additional Amounts") as shall be necessary in order that
------------------
the net amounts received by the Holders of the Securities of any series who are
not United States persons after such deduction or withholding shall equal the
amount that would have been receivable thereunder in the absence of such
deduction or withholding, except that no such Additional Amounts shall be
payable on account of:
(a) any Tax which would not have been so imposed but for (i) the
existence of any present or former connection between such Holder (or between
a fiduciary, settlor, beneficiary, member, shareholder of or possessor of a
power over such Holder, if such Holder is an estate, a trust, a partnership or
a corporation) and the United States or any political subdivision or taxing
authority thereof or therein, including, without limitation, such Holder (or
such fiduciary, settlor, beneficiary, member, shareholder or possessor) being
or having been a citizen or resident of the United States or treated as a
resident thereof, or being or having been engaged in trade or business or
present therein, or having had a permanent establishment therein, (ii) such
Holder's present or former status as a personal holding company, a foreign
personal holding company with respect to the United States, a controlled
foreign corporation, a passive foreign investment company, or a foreign
private foundation or foreign tax exempt entity for United States tax
purposes, or a corporation which accumulates
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earnings to avoid United States Federal income tax, or (iii) such holder's
status as a bank extending credit pursuant to a loan agreement entered into in
the ordinary course of business;
(b) any Tax which would not have been so imposed but for the
presentation by the Holder of such Security or any Coupon appertaining thereto
for payment on a date more than 15 days after the date on which such payment
became due and payable or the date on which payment thereof is duly provided
for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal property
or similar Tax;
(d) any Tax which would not have been imposed but for the failure to
comply with any certification, identification or other reporting requirements
concerning the nationality, residence, identity or connection with the United
States of the Holder or beneficial owner of such Security or any Coupon
appertaining thereto, if compliance is required by statute or by regulation or
ruling of the United States Treasury Department as a precondition to exemption
from such Tax;
(e) any Tax which is payable otherwise than by deduction or withholding
from payments of principal of, premium, if any, or interest on such Security;
(f) any Tax imposed as a result of a Person's past or present actual or
constructive ownership, including by virtue of the right to convert
Securities, of 10% or more of the total combined voting power of all classes
of stock of the Company entitled to vote;
(g) any Tax required to be withheld by any Paying Agent from any
payment of the principal of, premium, if any, or interest on such Security, if
such payment can be made without such withholding by any other Paying Agent in
Western Europe;
(h) any Tax imposed on a Holder that is a partnership or a fiduciary,
but only to the extent that any beneficial owner or member of the partnership
or beneficiary or settlor with respect to the fiduciary would not have been
entitled to the payment of Additional Amounts had the beneficial owner,
member, beneficiary or settlor directly received its beneficial or
distributive share of payments on such Security;
(i) any Tax which would not have been imposed but for the fact that
such Security constitutes a "United States real property interest," as defined
in Section 897(c)(1) of the Internal Revenue Code and the regulations
thereunder, with respect to the beneficial owner of such Security; or
(j) any combination of items (a), (b), (c), (d), (e), (f), (g), (h) and
(i).
Notwithstanding the foregoing, if and so long as a certification,
identification or other information reporting requirement referred to in the
third paragraph of Section 1102 of this Indenture would be fully satisfied by
payment of a backup withholding tax or similar charge, the Company may elect, by
so stating in the Determination Notice (as hereinafter defined), to have
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the provisions of this paragraph apply in lieu of redeeming the Security
pursuant to such Section 1102. In such event, the Company will pay as Additional
Amounts such amounts as may be necessary so that every net payment made,
following the effective date of such requirements, outside the United States by
the Company or any Paying Agent of principal and premium, if any, due in respect
of a Security, or interest represented by any Coupon, the beneficial owner of
which is not a United States person (but without any requirement that the
nationality, residence or identity of such beneficial owner be disclosed to the
Company, any Paying Agent or any governmental authority), after deduction or
withholding for or on account of such backup withholding tax or similar charge,
other than a backup withholding tax or similar charge which is (a) the result of
a certification, identification or information reporting requirement described
in the first parenthetical clause of such third paragraph of Section 1102, (b)
imposed as a result of the fact that the Company or any Paying Agent has actual
knowledge that the beneficial owner of the Security or such Coupon is within the
category of Persons described in clause (a) of the preceding paragraph or (c)
imposed as a result of presentation of the Security or such Coupon for payment
more than 15 days after the date on which such payment becomes due and payable
or on which payment thereof is duly provided for, whichever occurs later, will
not be less than the amount provided for in the Security or such Coupon to be
then due and payable.
Except as specifically provided in this Indenture, the Company shall
not be required to make any payment with respect to any Taxes.
If the Company or any successor to the Company under this Indenture shall
be incorporated under the laws of a jurisdiction other than the United States,
the Company or its successor will pay and shall provide notice to the Trustee of
the payment of, such additional amounts ("Other Additional Amounts") as may be
------------------------
necessary in order that every net payment on each Security, after withholding
for or on account of any present or future tax, assessment or other governmental
charge imposed upon or as a result of such payment by such other jurisdiction
(or any political subdivision or taxing authority thereof or therein), will be
not less than the amount provided for in such Security to be then due and
payable; provided, however, that (i) the Other Additional Amounts payable to a
-------- -------
Holder of a Security will be reduced to the extent that such withholding reduces
any tax liability to which such Holder of the Security was and is subject both
prior to and after such incorporation in another jurisdiction and (ii) the
exceptions listed in the third preceding paragraph shall apply, substituting for
the United States the relevant jurisdiction that imposes the tax giving rise to
the payment of Other Additional Amounts.
Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of or any premium or interest on, or in respect of, any
Security of any series or any Coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided by the terms of this
Indenture or by the terms of such series established hereby or pursuant hereto
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms, and express mention of the
payment of Additional Amounts (if applicable) in any provision hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
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Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, if the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to each date of payment of
principal or interest if any Additional Amounts will be payable in connection
therewith, the Company shall furnish to the Trustee and the principal Paying
Agents, if other than the Trustee, an Officers' Certificate which shall specify
by country the amount, if any, required to be withheld on such payments to such
Holders of Securities or Coupons, and the Company agrees to pay to the Trustee
or such Paying Agent the Additional Amounts required hereby or by the terms of
such Securities. The Company covenants to indemnify the Trustee and any Paying
Agent and other officers, directors, employees and agents for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
Section 1005. Statement as to Compliance.
--------------------------
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company an Officers' Certificate, stating as to each
signer, that
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her supervision; and
(2) to the best of his or her knowledge, based on such review, (a) the
Company has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a material default in the fulfillment of any such
obligation, specifying each such default known to him or her and the nature and
status thereof, and (b) no event has occurred and is continuing which is, or
after notice or lapse of time or both would become, an Event of Default, or, if
such an event has occurred and is continuing, specifying each such event known
to him or her and the nature and status thereof.
Section 1006. Corporate Existence.
-------------------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
------------------------
Redemption of Securities of any series at the option of the Company as
permitted or required in or pursuant to this Indenture or by the terms of such
Securities shall be made in accordance with the terms of this Indenture or such
Securities and (except as otherwise provided herein or pursuant hereto) this
Article Eleven.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of the Securities of any series, the Company shall, at least 75 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
In addition, notwithstanding the above, if as a result of a Tax Law
Change, the Company has or will become obligated to pay to the Holder of any
Security or Coupon Additional Amounts, and such obligation cannot be avoided by
the Company taking reasonable measures available to it, then the Company may, at
its option, redeem the Tax Affected Securities as a whole, but not in part, upon
not less than 20 nor more than 60 days' notice to the Holders prior to the
Redemption Date therefor, at a Redemption Price equal to 100% of the principal
amount plus interest accrued to the Redemption Date, and any Additional Amounts
then payable; provided that (i) no such notice of redemption shall be given
-------- ----
earlier than 90 days prior to the earliest date on which the Company would be
obligated to pay any such Additional Amounts were a payment in respect of the
Tax Affected Securities then due and (ii) at the time such notice of redemption
is given, such obligation to pay such Additional Amounts remains in effect.
Prior to the publication of any notice of redemption pursuant to this paragraph,
the Company shall deliver to the Trustee (a) an Officers' Certificate stating
that the Company is entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent to the right of the
Company so to redeem have occurred and (b) an Opinion of Counsel selected by the
Company to the effect that the Company has or will become obligated to pay such
Additional Amounts as a result of such Tax Law Change. The Company's right to
redeem the Tax Affected Securities shall continue as long as the Company is
obligated to pay such Additional Amounts, notwithstanding that the Company shall
have made payments of Additional Amounts specified in Section 1004.
In addition, if the Company determines, based upon an Opinion of Counsel,
that, as a result of a Tax Law Change, any payment made outside the United
States by the Company or any of its Paying Agents of the full amount of
principal, premium, if any, or interest due with respect to any Bearer Security
or Coupon appertaining thereto would be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which requirement is the disclosure to the Company, any Paying Agent
or any governmental authority
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of the nationality, residence or identity of a beneficial owner of such Bearer
Security or Coupon who is not a United States person (other than such a
requirement (a) which would not be applicable to a payment made by the Company
or any one of its Paying Agents (i) directly to the beneficial owner or (ii) to
any custodian, nominee or other agent of the beneficial owner, (b) which can be
satisfied by the custodian, nominee or other agent certifying that such
beneficial owner is not a United States person, provided that, in each case
-------- ----
referred to in clauses (a) (ii) and (b), payment by such custodian, nominee or
agent to such beneficial owner is not otherwise subject to any such requirement,
or (c) which would not be applicable but for the fact that such Bearer Security
constitutes a "United States real property interest," as defined in Section
897(c)(1) of the Internal Revenue Code, with respect to the beneficial owner of
such Bearer Security), the Company at its election will either (x) redeem the
Bearer Securities, as a whole but not in part, upon not less than 20 nor more
than 60 days' notice prior to the Redemption Date, at a Redemption Price equal
to 100% of the principal amount thereof plus interest accrued to the Redemption
Date and any Additional Amounts, or (y) if and so long as the certification,
identification or other information reporting requirement referred to above
would be fully satisfied by payment of a backup withholding tax or similar
charge, pay the Holder the Additional Amounts specified in Section 1004. The
Company will make such determination and election and notify the Trustee and the
Paying Agent in London, England thereof in writing as soon as practicable, and
the Trustee will promptly give notice of such determination in the manner
provided in Section 106 (the "Determination Notice"), in each case stating the
------------- ------
effective date of such certification, identification or information reporting
requirement, whether the Company will redeem the Bearer Securities or will pay
the Additional Amounts specified in the second paragraph of Section 1004 and (if
applicable) the last date by which the redemption of the Bearer Securities must
take place. If the Company elects to redeem the Bearer Securities pursuant to
clause (x) above, such redemption shall take place on a date, not later than one
year after the publication of the Determination Notice, as the Company elects by
notice in writing to the Trustee and the Paying Agent in London at least 75 days
before the Redemption Date, unless shorter notice is acceptable to the Trustee.
Notwithstanding the foregoing, the Company will not so redeem the Bearer
Securities if the Company, based upon an Opinion of Counsel which counsel shall
be reasonably acceptable to the Trustee, subsequently determines, not less than
20 days prior to the Redemption Date, that subsequent payments would not be
subject to any such requirement, in which case the Company will notify the
Trustee in writing of its determination not to so redeem the Securities, and the
Trustee will promptly give notice to the Holders of the Bearer Securities of
that determination and any earlier redemption notice will thereupon be revoked
and of no further effect. If the Company elects as provided in clause (y) above
to pay Additional Amounts, the Company may, as long as the Company is obligated
to pay such Additional Amounts, subsequently redeem the Bearer Securities, at
any time, as a whole but not in part, upon not less than 20 nor more than 60
days' notice prior to the Redemption Date, at a Redemption Price equal to 100%
of the principal amount thereof plus interest accrued to the Redemption Date,
and any Additional Amounts.
Section 1103. Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
If any Securities of any series are to be redeemed in part, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee
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from the Outstanding Securities of such series not previously called for
redemption, in compliance with the requirements of the principal U.S. securities
exchange, if any, on which the Securities are listed, or, if the Securities are
not so listed, on a pro rata basis, by lot or such other method as the Trustee
shall deem fair and appropriate, under circumstances intended not to
discriminate between Registered and Bearer Securities to be redeemed, and which
may provide for the selection for redemption of portions of the principal amount
of Registered Securities of such series; provided, however, that no such partial
-------- -------
redemption shall reduce the portion of the principal amount of a Registered
Security of such series not redeemed to less than the minimum denomination for a
Security of such series established herein or pursuant hereto. The Trustee shall
have no liability in connection with any selection of securities to redemption
made in good faith and without negligence.
If any Registered Security selected for partial redemption, which is
convertible by the terms of such Security established pursuant to Section 301,
is converted in part before termination of the conversion right with respect to
the portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of Securities to be
redeemed may be treated by the Trustee as Outstanding for the purpose of such
selection.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by the Trustee in the manner provided
in Section 106, not less than 20 nor more than 60 days prior to the Redemption
Date, unless a different period is specified in the Securities to be redeemed.
All such redemption notices (except, in the case of a redemption specified in
the penultimate paragraph of Section 1102) shall be irrevocable. Failure to
give notice by mailing in the manner herein provided to the Holder of any
Registered Securities designated for redemption as a whole or in part, or any
defect in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall identify the Securities to be redeemed and
shall state:
(1) the Redemption Date,
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(2) the Redemption Price, or, if the Redemption Price is not then
determinable, the formula pursuant to which the Redemption Price will be
determined, and accrued interest, if any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the Holder of such Security will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become due and
payable upon each such Security or portion thereof to be redeemed, and, if
applicable, that interest thereon shall cease to accrue on and after said date,
(6) if applicable, the Conversion Price, the date on which the right to
convert the Securities to be redeemed will terminate and the places where such
Securities, together with all unmatured Coupons and any matured Coupons in
default appertaining thereto, may be surrendered for conversion,
(7) the place or places where such Securities, together (in the case of
Bearer Securities) with all Coupons appertaining thereto, if any, maturing after
the Redemption Date, are to be surrendered for payment of the Redemption Price
and any accrued interest and Additional Amounts pertaining thereto,
(8) that the redemption is for a sinking fund, if such is the case,
(9) that, unless otherwise specified in such notice, Bearer Securities of
any series, if any, surrendered for redemption must be accompanied by all
Coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing Coupon or Coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished,
(10) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made, and
(11) the CUSIP number, ISIN number or the Euroclear or the Cedel reference
numbers of such Securities, if any (or any other numbers used by a Depository or
Common Depository to identify such Securities).
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Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
---------------------------
On or prior to 10:00 a.m., Eastern Time, on any Redemption Date, the
Company shall deposit, in immediately available funds, with respect to the
Securities of any series called for redemption pursuant to Section 1104, with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in Dollars sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date, unless otherwise
specified pursuant to Section 301 for or in the Securities of such series) any
accrued interest on and Additional Amounts with respect thereto, all such
Securities or portions thereof which are to be redeemed on that date.
If any Security called for redemption, which is convertible by the terms of
such Security established pursuant to Section 301, is converted, any money
deposited with the Trustee or with a Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any predecessor Security to receive interest as
provided in Section 307) be paid to the Company on Company Request or, if then
held by the Company, shall be discharged from such trust.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that, except
-------- -------
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section 1002),
and provided, further, that, except as otherwise specified in or pursuant to
-------- -------
this Indenture or the Registered Securities of such series, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 307.
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If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing Coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that any
-------- -------
interest or Additional Amounts represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an Office or Agency for such
Security located outside of the United States except as otherwise provided in
Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security and each Security shall remain convertible (if applicable) until the
principal of such Security (or portion thereof, as the case may be) shall have
been paid or duly provided for.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered at
any applicable Office or Agency for such Security (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository or Common Depository for such Security in global form as
shall be specified in the Company Order with respect thereto to the Trustee,
without service charge, a new Security in global form in a denomination equal to
and in exchange for the unredeemed portion of the principal of the Security in
global form so surrendered.
ARTICLE TWELVE
CONVERSION OF SECURITIES
Section 1201. Conversion Privilege and Conversion Price.
-----------------------------------------
Conversion of Securities of any series at the option of the Holder thereof
as permitted by the terms of such Securities shall be made in accordance with
the terms of such Securities and (except as otherwise provided herein or
pursuant hereto) this Article Twelve. Each reference in this Article Twelve to
"a Security" or "the Securities" refers to the Securities of the particular
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series that are convertible into shares of Common Stock. At the option of the
Holder any Security other than the temporary global Bearer Security may be
converted into fully paid and nonassessable shares (calculated as to each
conversion to the nearest 1/100th of a share) of Common Stock of the Company at
the Conversion Price (as defined below) in effect at the time of conversion.
The period for conversion shall be set forth in the terms of the Securities. In
case a Security or portion thereof is called for redemption or is delivered for
repayment, such conversion right in respect of the Security or portion so called
or delivered shall expire at the close of business on the fifth Business Day
preceding the Redemption Date or the second Business Day preceding a repayment
on the Securities Repayment Date (as set forth in Article Fifteen), as the case
may be, unless the Company defaults in making the payment due upon redemption or
repayment, as the case may be.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Price") shall be as set forth in the
----------------
terms of the Securities. The Conversion Price shall be adjusted in certain
instances as provided in this Article Twelve.
Upon presentment for conversion of any Securities pursuant to this Section
1201, the applicable Conversion Agent shall that day notify the Company of such
presentment. The Company shall deliver to such Holder, through the Conversion
Agent, as promptly as practicable on or after the Conversion Date, the
certificates representing the number of shares of Common Stock to be delivered,
and cash in lieu of any fractional shares. No payment or adjustment shall be
made upon any conversion on account of any dividends on the Common Stock issued
upon conversion.
Section 1202. Exercise of Conversion Privilege
--------------------------------
.
In order to exercise the conversion privilege, the Holder of any Definitive
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank (in the case of any Registered Security), at
any applicable Place of Conversion, accompanied by a duly signed and completed
conversion notice substantially in the form attached hereto as Exhibit B stating
---------
that the Holder elects to convert such Security or, if less than the entire
principal amount thereof is to be converted, the portion thereof to be
converted. Each Bearer Security surrendered for conversion must be surrendered
together with all Coupons appertaining thereto that mature after the Conversion
Date. If any Bearer Security surrendered for conversion shall not be
accompanied by all such appurtenant Coupons, the surrender of any or all of such
missing Coupons may be waived by the Company and the Trustee, if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. Matured Coupons not in default (including
Coupons maturing on the Conversion Date) will be payable against surrender
thereof, and matured Coupons previously surrendered and in default will continue
to be payable, notwithstanding the exercise of the right of conversion by the
Holder of the Security to which the Coupon appertains. Accrued interest from
the immediately preceding Interest Payment Date until the Conversion Date (and
Additional Amounts, if any, thereon) will be paid, through the Paying Agent, in
the same manner as regular payments of interest and as provided in Section 307,
within five Business Days after the Conversion Date. The Company's delivery to
the Holder of the fixed number of shares of
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Common Stock into which a Definitive Security is convertible will be deemed to
satisfy the Company's obligation to pay the principal amount of the Security.
Definitive Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such Securities for
conversion (accompanied by a duly signed and completed conversion notice as
contemplated above) in accordance with the foregoing provisions, and at such
time the rights of the Holders of such Securities as Holders shall cease, and
the Person or Persons entitled to receive the Common Stock issuable upon
conversion shall be treated for all purposes as the record holder or holders of
such Common Stock at such time. Subject to Section 1201, as promptly as
practicable on or after the Conversion Date, the Company shall issue and deliver
to the Trustee, for delivery to the Holder, a certificate or certificates for
the number of full shares of Common Stock issuable upon conversion, together
with payment in lieu of any fraction of a share, as provided in Section 1203.
In the case of any Security which is converted in part only, upon such
partial conversion the Company shall execute and the Trustee shall authenticate
and deliver to the Holder thereof, at the expense of the Company, a new Security
or Securities of authorized denominations in an aggregate principal amount equal
to and in exchange for the unconverted portion of the principal amount of such
Security. A Security may be converted in part, but only if the principal amount
of such Security to be converted is any integral multiple of U.S. $1,000 and the
principal amount of such security to remain Outstanding after such conversion is
equal to U.S. $1,000 or any integral multiple of $1,000 in excess thereof.
Section 1203. Fractions of Shares.
-------------------
No fractional shares of Common Stock shall be issued upon conversion of any
Definitive Security. If more than one Definitive Security shall be surrendered
for conversion at one time by the same Holder, the number of full shares which
shall be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Definitive Securities (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock which
would otherwise be issuable upon conversion of any Definitive Security or
Securities (or specified portions thereof), the Company shall calculate and pay
a cash adjustment in respect of such fraction (calculated to the nearest 1/100th
of a share) in an amount equal to the same fraction of the Closing Price Per
Share at the close of business on the Conversion Date. Such cash payments
shall, in the case of a conversion of Bearer Securities, be made to an address
outside of the United States.
Section 1204. Adjustment of Conversion Price.
------------------------------
The Conversion Price shall be subject to adjustment from time to time as
follows:
(1) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company in shares of Common
Stock, the Conversion Price in effect at the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced so that the same
shall equal the price determined by multiplying such Conversion Price by a
fraction of
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which the numerator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares of Common Stock constituting such dividend or other distribution, such
reduction to become effective at the opening of business on the day following
the date fixed for such determination. For the purposes of this paragraph (1),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock.
(2) In case at any time the Company shall issue rights, options or
warrants to all holders of its Common Stock entitling them to subscribe for or
purchase shares of Common Stock at a price per share less than the then current
market price per share (determined as provided in paragraph (6) of this Section)
of the Common Stock on the date fixed for the determination of stockholders
entitled to receive such rights, options or warrants, the Conversion Price in
effect at the opening of business on the day following the date fixed for such
determination shall be reduced so that the same shall equal the price determined
by multiplying such Conversion Price by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such
current market price and the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective at the opening of
business on the day following the date fixed for such determination; provided,
--------
however, that if an adjustment to the Conversion Price is made and any or all of
-------
such rights, options and warrants are not exercised, then a corresponding
reversing adjustment of the Conversion Price shall be made, on an equitable
basis, to take account of such event. For the purposes of this paragraph (2),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock.
(3) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Price in effect
at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and, conversely,
in case outstanding shares of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the Conversion Price in effect at the opening
of business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase, as the
case may be, to become effective at the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock evidences of its indebtedness, shares of any
class of capital stock, cash or assets (including securities, but excluding any
(i) rights, options or warrants referred to in paragraph (2) of this Section,
(ii) any dividend or distribution paid exclusively in cash out of the
consolidated retained earnings of the Company, (iii) any dividend or
distribution referred to in
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paragraph (1) of this Section and (iv) shares issued upon any merger or
consolidation to which Section 1211 applies), the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business on the
date fixed for the determination of stockholders entitled to receive such
distribution by a fraction of which the numerator shall be the current market
price per share (determined as provided in paragraph (6) of this Section) of the
Common Stock on the date fixed for such determination less the then fair market
value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive and described in a Company Board Resolution
filed with the Trustee) of the portion of the assets, shares or evidences of
indebtedness so distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common Stock,
such adjustment to become effective at the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such distribution. If the Conversion Price is adjusted because of the
distribution of rights, options or warrants, then, upon the expiration of any
such unexercised right, option or warrant, the Conversion Price shall be
adjusted to equal the Conversion Price that would have applied had such right,
option or warrant never been distributed.
(5) The reclassification of Common Stock into securities including
other than Common Stock (other than any reclassification upon a consolidation or
merger to which Section 1211 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be
"the date fixed for the determination of stockholders entitled to receive such
distribution" and "the date fixed for such determination" within the meaning of
paragraph (4) of this Section), and (b) a subdivision or combination, as the
case may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective," within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of
this Section 1204, the current market price per share of Common Stock on any
date shall be calculated by the Company and be deemed to be the average of the
daily Closing Prices Per Share for the five consecutive Trading Days selected by
the Company commencing not more than 10 Trading Days before, and ending not
later than, the earlier of the day in question and the day before the "ex date"
with respect to the issuance or distribution requiring such computation. For
purposes of this paragraph, the term "ex date," when used with respect to any
issuance or distribution, means the first date on which the Common Stock trades
regular way in the applicable securities market or on the applicable securities
exchange without the right to receive such issuance or distribution.
(7) No adjustment in the Conversion Price shall be required unless
such adjustment (plus any adjustments not previously made by reason of this
paragraph (7)) would require an increase or decrease of at least one percent in
such Conversion Price; provided, however, that any adjustments which by reason
-------- -------
of this paragraph (7) are not required to be made
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shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this Article shall be made to the nearest cent or to the
nearest one-thousandth of a share, as the case may be.
(8) The Company may make such reductions in the Conversion Price, for
the remaining term of any series of Securities or any shorter term, in addition
to those required by paragraphs (1), (2), (3) and (4) of this Section 1204, as
it considers to be advisable in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any dividend or distribution of
stock or issuance of rights or warrants to purchase or subscribe for stock or
from any event treated as such for income tax purposes.
Section 1205. Notice of Adjustments of Conversion Price.
-----------------------------------------
Whenever the Conversion Price is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Price in
accordance with Section 1204 and shall prepare a certificate signed by the
Treasurer of the Company setting forth the adjusted Conversion Price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall promptly be filed with the Trustee and with each Conversion
Agent; and
(2) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be required, and as
soon as practicable after it is required, such notice shall be provided by the
Company to all Holders in accordance with Section 106.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate or the information and
calculations contained therein, except to exhibit the same to any Holder of
Securities desiring inspection thereof at its office during normal business
hours.
Section 1206. Notice of Certain Corporate Action.
----------------------------------
In case:
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock payable otherwise than exclusively in cash out of the
consolidated retained earnings of the Company; or
(b) the Company shall authorize the granting to the holders of its
Common Stock of rights, options or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights (other than
rights, options or warrants to subscribe for or purchase any shares of
capital stock of any class or of any other rights of a corporation, a
majority of each class of common stock of which is owned, directly or
indirectly, by the Company); or
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(c) of any reclassification of the Common Stock of the Company (other
than a subdivision or combination of its outstanding shares of Common
Stock), or of any consolidation or merger to which the Company is a party
and for which approval of the stockholders of the Company is required
pursuant to applicable corporate law, or of the sale or transfer of all or
substantially all of the assets of the Company); or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002, and shall
cause to be provided to all Holders of Securities convertible pursuant to their
terms in accordance with Section 106, at least 20 days (or 10 days in any case
specified in clause (a) or (b) above) prior to the applicable record or
effective date hereinafter specified, a notice stating (y) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined, or (z) the date
on which such reclassification, consolidation, merger, share exchange,
conveyance, transfer, sale, lease, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, conveyance, transfer,
sale, lease, dissolution, liquidation or winding up. If at the time the Trustee
shall not be the Conversion Agent, a copy of such notice and any notice referred
to in the following paragraph shall also forthwith be filed by the Company with
the Trustee.
Section 1207. Company to Reserve Common Stock.
-------------------------------
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities of any series, the full number
of shares of Common Stock then issuable upon the conversion of all Outstanding
Securities of such series.
Section 1208. Taxes on Conversions.
--------------------
The Company will pay any and all stamp and similar taxes and duties that
may be payable in respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery of shares of Common Stock in a name other than that of
the Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax, or has established to the
satisfaction of the Company that such tax has been paid.
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Section 1209. Covenant as to Common Stock.
---------------------------
The Company agrees that all shares of Common Stock which may be delivered
upon conversion of Securities, upon such delivery, will have been duly
authorized and validly issued and will be fully paid and nonassessable and,
except as provided in Section 1208, the Company will pay all stamp and similar
taxes, liens and charges with respect to the issue thereof.
Section 1210. Cancellation of Converted Securities.
------------------------------------
All Securities delivered for conversion shall be delivered to the Trustee
or the Paying Agent or its agent to be canceled by or at the direction of the
Trustee, which shall dispose of the same as provided in Section 309.
Section 1211. Provision in Case of Consolidation, Merger or Sale of Assets.
------------------------------------------------------------
In case of any consolidation of the Company with, or merger of the Company
into, any other Person, any merger of another Person into the Company (other
than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company)
or any sale or transfer of all or substantially all of the assets of the
Company, the Person formed by such consolidation or resulting from such merger
or which acquires such assets, as the case may be, shall execute and deliver to
the Trustee a supplemental indenture providing that the Holder of each Security
then Outstanding shall have the right thereafter, during the period such
Security shall be convertible as specified in Section 1201, to convert such
Security only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock of the Company into which such Security might
have been converted immediately prior to such consolidation, merger, sale or
transfer (assuming such holder of Common Stock failed to exercise any rights of
election and that such Security was then convertible). Such supplemental
indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article Twelve. If
in the case of any such consolidation, merger, sale or transfer, the stock or
other securities and property receivable by a Holder of the Securities includes
stock or other securities and property of a corporation other than the successor
or purchasing corporation, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the Holders of the Securities as the Board of
Directors of the Company shall reasonably consider necessary. The above
provisions of this Section 1211 shall similarly apply to successive
consolidations, mergers, sales or transfers. Notice of the execution of such a
supplemental indenture shall be given by the Company to the Holder of each
Security as provided in Section 106 promptly upon such execution.
Section 1212. Compliance with Governmental Requirements.
-----------------------------------------
The Company covenants that if any shares of Common Stock required to be
reserved for purposes of conversion of Securities hereunder require registration
or listing with or approval of any governmental authority under any Federal or
State law, pursuant to the Securities Act or the
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Exchange Act, or any national or regional securities exchange or other trading
market on which the Common Stock is listed at the time of delivery of any Common
Stock, before such shares may be issued upon conversion, the Company will use
its best efforts to cause such shares to be duly registered, listed or approved,
as the case may be.
ARTICLE THIRTEEN
SINKING FUNDS
Section 1301. Applicability of Article.
------------------------
The provisions of this Article Thirteen shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise permitted
or required in or pursuant to this Indenture or any Security of such series
issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1302. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
Section 1302. Satisfaction of Sinking Fund Payments With Securities.
-----------------------------------------------------
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
-------- ----
Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
1302, the principal amount of Securities of such series to be redeemed in order
to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund
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payment, provided, however, that the Trustee or such Paying Agent shall at the
-------- -------
request of the Company from time to time pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon delivery by
the Company to the Trustee of Securities of that series purchased by the Company
having an unpaid principal amount equal to the cash payment requested to be
released to the Company.
Section 1303. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1302, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not more than 75 days or less than 45 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE FOURTEEN
[INTENTIONALLY OMITTED]
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1501. Applicability Of Article.
------------------------
Repayment of Securities of any series that are convertible into Common
Stock pursuant to Article Twelve before their Stated Maturity at the option of
Holders thereof shall be made in accordance with the terms of such Securities,
if any, and (except as otherwise specified by the terms of such series
established pursuant to Section 301) in accordance with this Article Fifteen.
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Section 1502. Repayment Of Securities.
-----------------------
Securities of any series subject to repayment in whole or in part (which
shall be in a principal amount hereof which is U.S. $1,000 or an integral
multiple thereof) at the option of the Holders thereof on any Repayment Date (as
defined below) will, unless otherwise provided in the Company's Board
Resolutions or Officers' Certificate establishing such series, be repaid at a
price equal to the principal amount thereof, together with interest and
Additional Amounts, if any (the "Repayment Price"), if a Repayment Event shall
---------------
occur or have occurred. For purposes hereof a "Repayment Event" shall have
---------------
occurred if the Common Stock (or other equity securities into which such series
of Securities is then convertible) is neither listed for trading on a United
States national securities exchange, the Nasdaq National Market nor approved for
trading on an established automated over-the-counter trading market in the
United States. The "Repayment Date" with respect to any Repayment Event shall
--------------
be the ninetieth (90th) day after the later of the Exchange Date or the date a
Repayment Event has occurred. The Company covenants that at or prior to
10:00 a.m., Eastern Time, on the Repayment Date it will deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money in
Dollars sufficient to pay the principal (or, if so provided by the terms of the
Securities of any series, a percentage of the principal) of, and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest and
Additional Amounts, if any, on, all the Securities or portions thereof, as the
case may be, to be repaid on such date.
Section 1503. Notice of Repayment.
-------------------
Unless the Company shall have theretofore called for redemption all of the
Outstanding Securities of such series, on or before the 30th day after the later
of the Exchange Date and the occurrence of a Repayment Event, the Company or, at
the request and expense of the Company, the Trustee shall give notice to all
Holders of Securities entitled to repayment pursuant to terms of such Securities
established in accordance with Section 301, in the manner provided in Section
106 (the "Repayment Notice"), that a Repayment Event has occurred and of the
----------------
repayment right set forth herein arising as a result thereof. If applicable,
the Company shall also deliver a copy of the Repayment Notice to the Trustee.
All notices of repayment shall identify the Securities eligible for
repayment and shall state:
(1) the Repayment Date,
(2) the date by which the repayment right must be exercised,
(3) the Repayment Price,
(4) the Conversion Price then in effect, the date on which the right to
convert the Securities to be repaid will terminate and the place or places where
such Securities, together (in the case of Bearer Securities) with all Coupons
appertaining thereto, if any, maturing after the Repayment Date, may be
surrendered for conversion,
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(5) a description of the procedure which a Holder must follow to exercise a
repayment right and the place or places where such Securities, together (in the
case of Bearer Securities) with all Coupons appertaining thereto, if any,
maturing after the Repayment Date, are to be surrendered for payment and accrued
interest and Additional Amounts, if any, pertaining thereto, and
(6) that, unless otherwise specified in such notice, Bearer Securities of
any series, if any, surrendered for repayment must be accompanied by all Coupons
maturing subsequent to the Repayment Date or the amount of any such missing
Coupon or Coupons will be deducted from any amount due to such Holder, unless
security or indemnity satisfactory to the Company, the Trustee and any Paying
Agent is furnished.
Section 1504. Exercise Of Option.
------------------
Any rights of Holders of Securities upon a Repayment Event will be subject
to the Company's compliance with any applicable tender offer rules and any other
applicable securities laws or regulations in connection with any repayment of
outstanding Securities at the option of the Holders thereof.
Securities of any series subject to repayment at the option of the Holders
thereof will contain an "Option to Elect Repayment" form substantially in the
form of Exhibit E, on the reverse of such Securities. In order for any Security
---------
to be repaid at the option of the Holder, the Trustee must receive at the Place
of Payment therefor specified in the terms of such Security (or at such other
place or places of which the Company shall from time to time notify the Holders
of such Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (2) a
telegram, facsimile transmission or a letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States setting
forth the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP number,
if any, or a description of the tenor and terms of the Security, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled
"Option to Elect Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date of such
telegram, facsimile transmission or letter; provided, however, that such
-------- -------
telegram, facsimile transmission or letter shall only be effective if such
Security and form duly completed are received by the Trustee by such fifth
Business Day. If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the
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minimum authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise provided in or pursuant to
this Indenture, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company and except that the right of the Holder
to convert the Securities with respect to which the repayment option is being
exercised shall continue until the close of business on the second Business Day
preceding the Repayment Date.
Section 1505. When Securities Presented For Repayment Become Due And Payable.
--------------------------------------------------------------
If Securities of any series providing for repayment at the option of the
Holders thereof shall have been surrendered as provided in this Article Fifteen
and as provided by or pursuant to the terms of such Securities, such Securities
or the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the Coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all Coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest and Additional Amounts, if any, to the
Repayment Date; provided, however, that Coupons whose Stated Maturity is on or
-------- -------
prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon presentation and
surrender of such Coupons; and provided, further, that, in the case of
Registered Securities, installments of interest and Additional Amounts, if any,
whose Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Company shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant Coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1502 an amount equal to the face amount of all such missing Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing Coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by Coupons
-------- -------
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
Coupons.
If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to
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such Repayment Date) shall, until paid, bear interest from the Repayment Date at
the rate of interest or yield to maturity (in the case of Original Issue
Discount Securities ) set forth in such Security.
Section 1506. Securities Repaid In Part.
-------------------------
Upon surrender of any Security which is to be repaid in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge and at the expense of the
Company, a new Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1601. Purposes for Which Meetings May Be Called.
-----------------------------------------
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article Sixteen to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1602. Call, Notice and Place of Meetings.
----------------------------------
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1601, to be
held at such time and at such place in the Borough of Manhattan, The City
of New York, or, if Securities of such series have been issued in whole or
in part as Bearer Securities, in London or in such place outside the United
States as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less
than 21 nor more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1601, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee
shall not have mailed notice of or made the first publication of the notice
of such meeting within 21 days after receipt of such request (whichever
shall be required pursuant to Section 106) or shall not thereafter proceed
to cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of
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Manhattan, The City of New York, or, if Securities of such series are to be
issued as Bearer Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause
(1) of this Section.
Section 1603. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 1604. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
-------- -------
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66-2/3% in principal amount of the Outstanding Securities of such series
constitute a quorum. In the absence of a quorum within 30 minutes after the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1602(1), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
-------- -------
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of at least 66-2/3% in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of 66-2/3% in principal amount of
the Outstanding Securities of that series; and provided, further, that, except
as limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly
-94-
provides may be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding Securities
of a series may be adopted at a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1605. Determination of Voting Rights; Conduct and Adjournment of
----------------------------------------------------------
Meetings.
--------
(1) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of
the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other
proof.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1602(2), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however,
-------- -------
that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1602 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of
-95-
such series represented at the meeting; and the meeting may be held as so
adjourned without further notice.
Section 1606. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1602 and, if
applicable, Section 1604. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SEVENTEEN
[INTENTIONALLY OMITTED]
ARTICLE EIGHTEEN
[INTENTIONALLY OMITTED]
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
[Remainder of page intentionally left blank]
-96-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
THERMO ELECTRON CORPORATION
(SEAL) By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Secretary
BANKERS TRUST COMPANY, as TRUSTEE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
(SEAL) Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
Attest:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ )
) : SS.:
COUNTY OF MIDDLESEX )
On the 27th day of October, 1998, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he
is the Treasurer of Thermo Electron Corporation, a Delaware corporation, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said Corporation; that the seal affixed to said instrument
is such Corporation's seal; that it was so affixed by authority of the Board of
Directors of said Corporation; and that he signed his name thereto by like
authority.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Notary Public
Commission Expires: September 3, 2004
[NOTARIAL SEAL]
STATE OF NY )
) : SS.:
COUNTY OF NY )
On the 29th day of October, 1998, before me personally came
▇▇▇▇ ▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say
that he is an Asst. Treasurer of Bankers Trust Company, a New York banking
corporation, one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said Corporation; that the seal affixed to
said instrument is such Corporation's seal; that it was so affixed by authority
of the Board of Directors of said Corporation; and that he signed his name
thereto by like authority.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Notary Public
Notary Public, State of New York
No. O1SH5087362
Qualified in Westchester County
Commission Expires 11/3/99
[NOTARIAL SEAL]
-98-
EXHIBIT A
---------
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
NAME OF TRUSTEE,
as Trustee
*Dated:
BY:_________________________________
Authorized Officer
______________________________
* for registered securities only
A-1
EXHIBIT B
---------
CONVERSION NOTICE
(A) FOR BEARER SECURITIES:
The undersigned Holder of this Security hereby irrevocably exercises the
option to convert this security, or any portion of the principal amount hereof
(which is an integral multiple of U.S. $1,000 below designated) into shares of
common stock in accordance with the terms of the indenture referred to in this
security and directs that such shares, together with a check in payment for any
fractional share and any securities representing any unconverted principal
amount hereof, be delivered to the undersigned unless a different name has been
indicated below. The address for payment of any such check must be outside the
united states. If shares are to be registered in the name of a person other
than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
DATED: __________________ _____________________________
SIGNATURE
If shares are to be registered in the name of HOLDER
and delivered to a person other than the
holder, please print such person's name and Please print name and address
address: of Holder
_____________________________________ _____________________________
Name Name
_____________________________________ _____________________________
Address Address
_____________________________________ _____________________________
_____________________________________ _____________________________
_____________________________________ _____________________________
Social Security or other Taxpayer Social Security or other
Identification Number, if any Taxpayer Identification
Number, if any
B-1
Name and address (outside the United States) if only a portion of the
to where any check referred to in the first securities is to be converted,
paragraph of this conversion notice should please indicate:
be mailed:
1. principal amount to be
converted:
U.S. $___________________
_______________________________
name
2. Principal amount and
denomination of Bearer Securities
_______________________________ representing unconverted principal
address amount to be issued:
Amount: U.S. $ _______________
denominations:
U.S.$__________
(any integral multiple of U.S.
$1,000)
B-2
(b) for Registered Securities:
the undersigned Holder of this security hereby irrevocably exercises the
option to convert this Security, or any portion of the principal amount hereof
(which is an integral multiple of U.S. $1,000 below designated) into shares of
Common Stock in accordance with the terms of the Indenture referred to in this
Security, and directs that such shares, together with a check in payment for any
fractional share and any Securities representing any unconverted principal
amount hereof, be delivered to and be registered in the name of the undersigned
unless a different name has been indicated below. If shares or Securities are
to be registered in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Dated:_________________________ ______________________________
Signature
[MUST BE GUARANTEED IF STOCK OR SECURITIES
ARE TO BE ISSUED IN A NAME OTHER THAN THE
REGISTERED HOLDER OF THE SECURITY]
____________________________________
NAME
____________________________________
ADDRESS
____________________________________
Social Security or other Taxpayer
Identification Number, if any
B-3
If shares or Registered Securities are to be IF ONLY A PORTION OF THE SECURITIES IS TO BE
registered in the name of a Person other CONVERTED, PLEASE INDICATE:
than the Holder, please print such Person's
name and address: 1. Principal amount to be converted:
U.S. $___________________
_______________________________ 2. Principal amount and denomination of
Name Registered Securities representing unconverted
principal amount to be issued.
_______________________________
Address
Amount: U.S.$_________________
_______________________________
Social Security or other taxpayer Denominations:
Identification Number, if any U.S.$__________
(any integral multiple of U.S. $1,000)
B-4
EXHIBIT C
---------
Form of Certificate of Beneficial Ownership for
Bearer Securities to be Provided to the
Euroclear Operator or to Cedel Bank, societe anonyme
CERTIFICATION
-------------
U.S. $____________
THERMO ELECTRON CORPORATION
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof and except as set forth
below, $___________ aggregate principal amount of the above-mentioned Securities
held by you for our account are owned or, if this certificate is being delivered
in connection with a payment of interest, were owned, by or on behalf of, (a) a
person (other than a financial institution for purposes of resale during the
restricted period) who is not a United States person; or (b) a United States
person (other than a financial institution for purposes of resale during the
restricted period) who is (i) a foreign branch of a United States financial
institution or (ii) a United States person acquiring such Securities through the
foreign branch of a United States financial institution and who for purposes of
this certification holds such Securities through such financial institution on
the date hereof, and, in the case of either (i) or (ii), such United States
financial institution has agreed, for the benefit of the Company, to comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as from time to time amended, and the regulations
thereunder; or (c) a financial institution for purposes of resale during the
restricted period and such financial institution has not acquired such
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions; and the
undersigned has obtained a similar certificate from its member organizations on
which this certificate is based; provided, however, that if the undersigned has
actual knowledge that the information contained in such a certificate is false
(and, absent documentary evidence that the beneficial owner of such Security is
not a United States person, it will be deemed to have actual knowledge that such
certificate is false if it has a United States address for such beneficial
owner, other than a financial institution described above), the undersigned will
not deliver a Security in temporary or definitive bearer form to the person who
signed such certificate notwithstanding the delivery of such certificate to the
undersigned.
C-1
No. of Certificates Amount
$1,000 Denomination ________________ = $________________
$10,000 Denomination ________________ = $________________
[Other Authorized ________________ = $________________
Denomination]
Total Requested ________________ = $________________*
As used herein, (i) "United States person" means (a) a citizen or resident
of the United States, (b) a corporation, partnership or other entity created or
organized in or under the laws of the United States, (c) an estate, the income
of which is subject to United States Federal income taxation regardless of
source, (d) any trust if a court within the United States is able to exercise
primary supervision of the administration thereof and one or more United States
persons has the authority to control all substantial decisions thereof, or (e)
any other person deemed a "United States person" or a "U.S. person" under the
Internal Revenue Code of 1986, as amended, (ii) "United States" means the United
States of America (including the several States and the District of Columbia)
and its territories, its possessions and other areas subject to its
jurisdiction, (iii) "restricted period" means the period described in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations, and (iv)
"financial institution" means the persons described in Section 1. 165-
12(c)(1)(v) of the United States Treasury Regulations.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the Securities held
by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to U.S.$_______________ of
such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of Definitive
Securities cannot be made until we do so certify.
_________________
* Must equal the amount stated in the first paragraph of this certificate.
C-2
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interested party in such proceedings.
Dated: ___________________, ____**
[Name]
By:_________________________
Signature
As, or as agent for, the beneficial
owner[s] of the Securities to which this
certificate relates.
___________
** Not earlier than 15 days prior to the earlier of the date that definitive
Bearer Secuirty is delivered and the Exchange Date.
C-3
EXHIBIT D
---------
Form of Certificate to be Given by
the Euroclear Operator and Cedel Bank, societe anonyme
CERTIFICATION
-------------
U.S. $
THERMO ELECTRON CORPORATION
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or electronic transmission from member organizations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below or to interest payable on an interest payment date (our
"Member Organizations"), substantially to the effect set forth in the Indenture
relating to the above-captioned Securities, as of the date hereof, U.S.
$_______________ aggregate principal amount of the above-captioned Securities is
owned by persons that are not (a) citizens or residents of the United States,
(b) corporations, partnerships or other entities created or organized in or
under the laws of the United States, (c) an estate, the income of which is
subject to United States Federal income taxation regardless of source, (d) any
trust if a court within the United States is able to exercise primary
supervision of the administration thereof and one or more United States persons
has the authority to control all substantial decisions thereof, or (e) any other
person deemed a "United States person" or a "U.S. person" under the Internal
Revenue Code of 1986, as amended, and the regulations thereunder ("United States
persons").
The following denominations of Bearer Securities are requested:
No. of Certificates Amount
$1,000 Denomination ________________ = $________________
$10,000 Denomination ________________ = $________________
[Other Authorized ________________ = $________________
Denomination]
Total Requested ________________ = $________________*
We further certify (i) that we are not making available herewith for
exchange any portion of the temporary global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organization with respect to any portion of the
part
-------------
* Must equal the amount stated in the first paragraph of this certificate.
D-1
submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof. We further certify that interest payable on the
interest payment dates on _________ and _________ will be paid with respect to
U.S. $_____________ principal amount of the Securities with respect to which we
have received from Member Organizations certificates substantially in the form
set out in Exhibit C to the Indenture relating to the Securities that the
Securities (a) are owned by a person (other than a financial institution for
purposes of resale during the restricted period) who is not a United States
person; (b) are owned by a United States person (other than a financial
institution for purposes of resale during the restricted period) who is (i) a
foreign branch of a United States financial institution or (ii) a United States
person who acquired such Securities through the foreign branch of a United
States financial institution and who for purposes of this certification holds
such Securities through such financial institution on the date hereof and, in
either case, such United States financial institution has agreed, for the
benefit of the Company, to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as from time to
time amended, and the regulations thereunder; or (c) are owned by a financial
institution for purposes of resale during the restricted period and such
financial institution has certified that it has not acquired such Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
To the extent that we have knowledge that any of such certificates from a
Member Organization is false and to the extent that we have not received with
respect to any Securities such certificates from Member Organization, we are not
requesting that payment be made for interest with respect thereto.
We further certify that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organization with respect to any interest payment
on any portion of the principal amount of the Securities are no longer true and
cannot be relied upon as of the date hereof. We further certify that under the
rules of the undersigned organization, each Member Organization has agreed that
any electronic certification shall have the effect of a signed certification and
that all certifications shall be retained for at least four calendar years
following the year in which the certifications are received in compliance with
the rules set forth under Treas. Reg. 1.163-5(c)(2)(i)(D)(3)(i).
We undertake that any interest received by us and not paid as provided
above shall be returned to the Trustee for the above-captioned Securities
immediately prior to the expiration of two years after such interest payment
date in order to be repaid by such Trustee to the above issuer at the end of two
years after such interest payment date.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
D-2
As used herein, "United States" means the United States of America
(including the several States and the District of Columbia), and its
territories, its possessions and other areas subject to its jurisdiction. As
used herein, "restricted period" means the period described in Section 1.163-
5(c)(2)(i)(D)(7) of the United States Treasury Regulations and "financial
institution" means the persons described in Section 1.165-12(c)(1)(v) of the
United States Treasury Regulations.
Dated: ____________________, ____**
Yours faithfully,
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, BRUSSELS
OFFICE, AS OPERATOR OF THE EUROCLEAR SYSTEM]
[CEDEL BANK, SOCIETE ANONYME]***
By:_____________________________
________________
** To be dated no earlier than the earlier of the date the definitive Bearer
Security is delivered and the Exchange Date.
*** Delete as appropriate.
D-3
EXHIBIT E
---------
OPTION TO ELECT REPAYMENT
UPON A REPAYMENT EVENT
To: Thermo Electron Corporation
The undersigned owner of this Security hereby acknowledges receipt of a
notice from Thermo Electron Corporation (the "Company") as to the occurrence of
a Repayment Event with respect to the Common Stock of the Company and requests
and instructs the Company to repay the entire principal amount of this Security,
or the portion thereof (which is $1,000 or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in this
Security at the Repayment Price (or the relevant percentage thereof), together
with accrued interest to such date (except if the Repayment Date shall be an
Interest Payment Date), to the holder hereof.
Dated: ________________________
________________________________
Signature*(s)
Name: __________________________
Address:_________________________
_________________________
[* Signature Guarantee Required]
Principal amount to be repaid
(if less than all):
$__________
NOTICE: If this Security is issued
in registered form, the above
signatures of the holder(s) hereof
must correspond with the name as it appears
in the Security in every particular without
alteration or enlargement or any
change whatever.
__________________
Social Security or Other
Taxpayer Identification Number
E-1