EXHIBIT 4.1
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THERMO INSTRUMENT SYSTEMS INC.,
ISSUER
and
THERMO ELECTRON CORPORATION,
GUARANTOR
TO
BANKERS TRUST COMPANY,
TRUSTEE
INDENTURE
DATED AS OF JANUARY 15, 1998
SUBORDINATED DEBT SECURITIES
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Reconciliation and Tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act") and Indenture
Trust Indenture Act Section Indenture Section
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Section 310(a)(1)........................................ 607
(a)(2).................................................. 607
(b)..................................................... 608
Section 311.............................................. 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........................................... 2
Section 101. Definitions.......................................... 2
Section 102. Compliance Certificates and Opinions................. 14
Section 103. Form of Documents Delivered to Trustee............... 15
Section 104. Acts of Holders...................................... 16
Section 105. Notices, Etc. to Trustee, Company and Guarantor...... 18
Section 106. Notice to Holders of Securities; Waiver.............. 18
Section 107. Language of Notices.................................. 19
Section 108. Conflict with Trust Indenture Act.................... 19
Section 109. Effect of Headings and Table of Contents............. 20
Section 110. Successors and Assigns............................... 20
Section 111. Separability Clause.................................. 20
Section 112. Benefits of Indenture................................ 20
Section 113. Governing Law........................................ 20
Section 114. Legal Holidays....................................... 20
Section 115. Taxes................................................ 21
ARTICLE TWO: SECURITIES AND GUARANTEE FORMS......................... 22
Section 201. Forms Generally...................................... 22
Section 202. Guarantee by Guarantor; Form of Guarantee............ 22
Section 203. Form of Trustee's Certificate of Authentication...... 23
Section 204. Securities in Global Form............................ 23
Section 205. Form of Conversion Notice............................ 24
ARTICLE THREE: THE SECURITIES....................................... 24
Section 301. Amount Unlimited; Issuable in Series................. 24
Section 302. Currency; Denominations.............................. 28
Section 303. Execution, Authentication, Delivery and Dating....... 28
Section 304. Temporary Securities................................. 30
Section 305. Registration, Transfer and Exchange.................. 33
Section 306. Mutilated, Destroyed, Lost and Stolen Securities..... 37
Section 307. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts
Preserved.......................................... 38
Section 308. Persons Deemed Owners................................ 41
Section 309. Cancellation......................................... 41
Section 310. Computation of Interest.............................. 42
Section 311. CUSIP Numbers........................................ 42
Section 312. Notification of Withholding.......................... 42
ARTICLE FOUR: SATISFACTION AND DISCHARGE OF INDENTURE............... 42
Section 401. Satisfaction and Discharge........................... 42
Section 402. Defeasance and Covenant Defeasance................... 44
Section 403. Application of Trust Money........................... 48
ARTICLE FIVE: REMEDIES.............................................. 48
Section 501. Events of Default.................................... 48
Section 502. Acceleration of Maturity; Rescission and Annulment... 50
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee............................. 52
Section 504. Trustee May File Proofs of Claim..................... 52
Section 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.............................. 53
Section 506. Application of Money Collected....................... 54
Section 507. Limitations on Suits................................. 54
Section 508. Unconditional Right of Holders to Receive Principal
and Any Premium, Interest and Additional Amounts... 55
Section 509. Restoration of Rights and Remedies................... 55
Section 510. Rights and Remedies Cumulative....................... 55
Section 511. Delay or Omission not Waiver......................... 56
Section 512. Control by Holders of Securities..................... 56
Section 513. Waiver of Past Defaults.............................. 56
Section 514. Waiver of Usury, Stay or Extension Laws.............. 57
Section 515. Undertaking for Costs................................ 57
ARTICLE SIX: THE TRUSTEE............................................. 58
Section 601. Certain Rights of Trustee; Certain Duties and
Responsibilities................................... 58
Section 602. Notice of Defaults................................... 59
Section 603. Not Responsible for Recitals or Issuance of
Securities......................................... 60
Section 604. May Hold Securities; Act as Trustee Under Other
Indenture.......................................... 60
Section 605. Money Held in Trust.................................. 60
Section 606. Compensation and Reimbursement....................... 61
Section 607. Corporate Trustee Required; Eligibility.............. 61
Section 608. Resignation and Removal; Appointment of Successor.... 62
Section 609. Acceptance of Appointment by Successor............... 63
Section 610. Merger, Conversion, Consolidation or Succession to
Business........................................... 65
Section 611. Preferential Collection of Claims Against Company.... 65
Section 612. Appointment of Authenticating Agent.................. 65
Section 613. Conflicting Interests................................ 67
Section 614. Protection of Agents................................. 67
ARTICLE SEVEN: HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND
GUARANTOR............................................ 68
Section 701. Company and Guarantor to Furnish Trustee Names and
Addresses of Holders............................... 68
Section 702. Preservation of Information; Communications to
Holders............................................ 68
Section 703. Reports by Trustee................................... 69
Section 704. Reports by Company and Guarantor..................... 69
ARTICLE EIGHT: CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER......... 70
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Section 801. Company or Guarantor May Consolidate, Etc., Only
on Certain Terms.................................. 70
Section 802. Successor Corporation Substituted.................... 71
ARTICLE NINE: SUPPLEMENTAL INDENTURES............................... 71
Section 901. Supplemental Indentures Without Consent of Holders... 71
Section 902. Supplemental Indentures With Consent of Holders...... 73
Section 903. Execution of Supplemental Indentures................. 74
Section 904. Effect of Supplemental Indentures.................... 74
Section 905. Reference in Securities to Supplemental Indentures... 75
Section 906. Conformity with Trust Indenture Act.................. 75
ARTICLE TEN: COVENANTS............................................... 75
Section 1001. Payment of Principal, Any Premium, Interest and
Additional Amounts................................ 75
Section 1002. Maintenance of Office or Agency..................... 75
Section 1003. Money for Securities Payments to be Held in Trust... 77
Section 1004. Additional Amounts.................................. 79
Section 1005. Statement as to Compliance.......................... 82
Section 1006. Corporate Existence................................. 82
ARTICLE ELEVEN: REDEMPTION OF SECURITIES............................ 82
Section 1101. Applicability of Article............................ 82
Section 1102. Election to Redeem; Notice to Trustee............... 82
Section 1103. Selection by Trustee of Securities to be Redeemed... 84
Section 1104. Notice of Redemption................................ 85
Section 1105. Deposit of Redemption Price......................... 86
Section 1106. Securities Payable on Redemption Date............... 87
Section 1107. Securities Redeemed in Part......................... 88
ARTICLE TWELVE: CONVERSION OF SECURITIES............................ 88
Section 1201. Conversion Privilege and Conversion Price........... 88
Section 1202. Exercise of Conversion Privilege.................... 89
Section 1203. Fractions of Shares................................. 90
Section 1204. Adjustment of Conversion Price...................... 90
Section 1205. Notice of Adjustments of Conversion Price........... 93
Section 1206. Notice of Certain Corporate Action.................. 93
Section 1207. Company to Reserve Common Stock..................... 94
Section 1208. Taxes on Conversions................................ 94
Section 1209. Covenant as to Common Stock......................... 94
Section 1210. Cancellation of Converted Securities................ 95
Section 1211. Provision in Case of Consolidation, Merger or Sale
of Assets......................................... 95
Section 1212. Compliance with Governmental Requirements........... 95
ARTICLE THIRTEEN: SINKING FUNDS..................................... 96
Section 1301. Applicability of Article............................ 96
Section 1302. Satisfaction of Sinking Fund Payments With
Securities........................................ 96
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Section 1303. Redemption of Securities for Sinking Fund........... 97
ARTICLE FOURTEEN: GUARANTEES........................................ 97
Section 1401. Guarantees.......................................... 97
Section 1402. Execution and Delivery of Guarantees................ 98
Section 1403. Guarantees Optional................................. 99
ARTICLE FIFTEEN: REPAYMENT AT THE OPTION OF HOLDERS................. 100
Section 1501. Applicability Of Article............................ 100
Section 1502. Repayment Of Securities............................. 100
Section 1503. Notice of Repayment................................. 100
Section 1504. Exercise Of Option.................................. 101
Section 1505. When Securities Presented For Repayment Become Due
And Payable....................................... 102
Section 1506. Securities Repaid In Part............................ 103
ARTICLE SIXTEEN: MEETINGS OF HOLDERS OF SECURITIES.................. 103
Section 1601. Purposes for Which Meetings May Be Called........... 103
Section 1602. Call, Notice and Place of Meetings.................. 103
Section 1603. Persons Entitled to Vote at Meetings................ 104
Section 1604. Quorum; Action...................................... 104
Section 1605. Determination of Voting Rights; Conduct and
Adjournment of Meetings........................... 105
Section 1606. Counting Votes and Recording Action of Meetings..... 106
ARTICLE SEVENTEEN: SUBORDINATION OF SECURITIES...................... 106
Section 1701. Securities Subordinate to Senior Indebtedness....... 106
Section 1702. Payment Over of Proceeds Upon Dissolution, Etc...... 107
Section 1703. No Payment When Senior Indebtedness in Default...... 108
Section 1704. Payment Permitted If No Default..................... 109
Section 1705. Subrogation to Rights of Holders of Senior
Indebtedness...................................... 109
Section 1706. Provisions Solely to Define Relative Rights......... 109
Section 1707. Trustee to Effectuate Subordination................. 110
Section 1708. No Waiver of Subordination Provisions............... 110
Section 1709. Notice to Trustee................................... 110
Section 1710. Reliance on Judicial Order or Certificate of
Liquidating Agent................................. 111
Section 1711. Trustee Not Fiduciary for Holders of Senior
Indebtedness...................................... 111
Section 1712. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.................. 112
Section 1713. Article Applicable to Paying Agents................. 112
ARTICLE EIGHTEEN: SUBORDINATION OF GUARANTEES....................... 112
Section 1801. Guarantees Subordinate to Senior Guarantor
Indebtedness...................................... 112
Section 1802. Payment Over of Proceeds Upon Dissolution, Etc...... 112
Section 1803. No Payment When Senior Guarantor Indebtedness in
Default........................................... 114
Section 1804. Payment Permitted If No Default..................... 114
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Section 1805. Subrogation to Rights of Holders of Senior Guarantor
Indebtedness...................................... 115
Section 1806. Provisions Solely to Define Relative Rights......... 115
Section 1807. Trustee to Effectuate Subordination................. 115
Section 1808. No Waiver of Subordination Provisions............... 116
Section 1809. Notice to Trustee................................... 116
Section 1810. Reliance on Judicial Order or Certificate of
Liquidating Agent................................. 117
Section 1811. Trustee Not Fiduciary for Holders of Senior
Guarantor Indebtedness............................ 117
Section 1812. Rights of Trustee as Holder of Senior Guarantor
Indebtedness; Preservation of Trustee's Rights.... 118
Section 1813. Article Applicable to Paying Agents................. 118
EXHIBITS
EXHIBIT A Form of Guarantee
EXHIBIT B Form of Trustee's Certificate of Authentication
EXHIBIT C Conversion Notice
EXHIBIT D Form of Certificate of Beneficial Ownership for Bearer Securities to
be Provided to the Euroclear Operator or to Cedel Bank, societe
anonyme
EXHIBIT E Form of Certificate to be Given by the Euroclear Operator and Cedel
Bank, societe anonyme
EXHIBIT F Option to Elect Repayment upon a Repayment Event
V
INDENTURE, dated as of January 15, 1998 (the "Indenture"), among Thermo
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Instrument Systems Inc., a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter called the "Company"), having its
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principal executive office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; Thermo Electron Corporation, a corporation duly organized
and existing under the laws of the State of Delaware (hereinafter called the
"Guarantor"), having its principal executive office located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; 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
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located at Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
RECITALS:
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
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of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as provided in this
Indenture.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the Guarantees (as herein defined) by it with respect
to the Securities as set forth in this Indenture.
The Guarantor desires to make the Guarantees provided for herein, and has
determined that such Guarantees are necessary and convenient to the conduct of
the business of the Company, which is a subsidiary of the Guarantor.
All things necessary to make the Securities and any Coupons (as herein
defined), when executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company in accordance with its terms have been done.
All things necessary to make the Guarantees, when executed by the Guarantor
and endorsed on the Securities authenticated and delivered hereunder, the valid
obligations of the Guarantor, and to make this Indenture a valid agreement of
the Guarantor in accordance with its terms have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as herein defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities
or of any series thereof and any Coupons (as herein defined), as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
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Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America and, except as otherwise herein
expressly provided, the terms "generally accepted 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; and
(6) the word "or" is always used inclusively (for example, the phrase
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"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.
2
"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 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 or the
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Guarantor, means either the board of directors or any duly authorized committee
of such board of directors of the Company or the Guarantor, as the case may be.
"Board Resolution," when used with reference to the Company or the
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Guarantor, means a copy of one or more resolutions, certified by the Corporate
Secretary or an Assistant Corporate Secretary of the Company or the Guarantor,
as the case may be, to have been duly adopted by its respective Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day," with respect to any Place of Payment, Place of 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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3
"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 $.10 per share, of the
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Company authorized at the date of this instrument as originally executed.
Subject to the provisions of Section 1201 and 1211, shares issuable on
conversion of Securities shall include only shares of Common Stock or shares of
any class or classes of common stock resulting from any reclassification or
reclassifications thereof; provided, however, that if at any time there shall be
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more than one such resulting class, the shares so issuable on conversion of
Securities shall include shares of all such classes, and the shares of each such
class then so issuable shall be substantially in the proportion that the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.
"common stock" includes any stock of any class of capital stock which has
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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
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such successor Person.
"Company Request" and "Company Order" mean, respectively, a written request
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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
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Securities in accordance with Article Twelve.
4
"Conversion Date" means the date on which any Security, which is
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convertible by the terms and provisions of such Security established pursuant to
Section 301, and the duly signed 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
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elected by an entity's Board of Directors to hold the title of "Secretary" or
"Clerk" or "Assistant Secretary" or "Assistant Clerk," as the case may be, as
provided for by the applicable corporate law of an entity's jurisdiction of
incorporation.
"Corporate Trust Office" means the principal corporate trust office of the
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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,
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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
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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
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Standard & Poor's Ratings Services, CUSIP Service Bureau.
"Custodian" has the meaning specified in Section 501.
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"Default" means any event or condition the occurrence of which would, with
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the lapse of time or the giving of notice, or both, constitute an Event of
Default.
"Defaulted Interest" has the meaning specified in Section 307.
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"Definitive Security" means any Security that is a Bearer Security (other
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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
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for payment of public or private debts in the United States.
"EUROCLEAR" has the meaning specified in Section 304(c).
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5
"Event of Default" has the meaning specified in Section 501.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Exchange Date" means the date specified as such pursuant to Section 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
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of the United States or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States, and which, in the case of (i) or
(ii), are not callable or redeemable at the option of the issuer or issuers
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of or other amount with respect to
any such Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
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custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation evidenced
by such depository receipt.
"Guarantee" means any guarantee of the Guarantor endorsed on a Security
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authenticated and delivered pursuant to this Indenture and shall include the
guarantee attached to this Indenture as Exhibit A.
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"Guarantor" means the Person named as "Guarantor" in the first paragraph of
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this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Guarantor" shall
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include such successor corporation.
"Guarantor Request" and "Guarantor Order" mean, respectively, a written
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request or order, as the case may be, signed in the name of the Guarantor by any
two Officers or by any Officer and either an Assistant Treasurer or an Assistant
Corporate Secretary, of the Guarantor and delivered to the Trustee.
"Holder," in the case of any Registered Security, means the Person in 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
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supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security
6
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
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that, with respect to the Company, the Guarantor and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act, and the rules and regulations promulgated by the
Commission thereunder, who may be the independent public accountants regularly
retained by the Company or the Guarantor or who may be other independent public
accountants. Such accountants or firm shall be entitled to rely upon any Opinion
of Counsel as to the interpretation of any legal matters relating to this
Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
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principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest" or "interest," with respect to any Original Issue Discount
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Security, which by its terms bears interest only after Maturity, means interest
payable after Maturity and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
"Interest Payment Date," with respect to any Security, means the Stated
----------------------
Maturity of an installment of interest on such Security.
"Interest Record Date" means any Regular Record Date or Special Record
--------------------
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.
--------------
"Maturity," with respect to any Security, means the date on which the
--------
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repayment,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"Office" or "Agency", with respect to any Securities, means an office or
------ ------
agency of the Company maintained or designated as a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
7
"Officer" means the Chairman of the Board, the President, any Vice
-------
President (whether or not designated by a number or word added before or after
the title vice president), the Treasurer or the Corporate Secretary of the
Company or the Guarantor, as the case requires.
"Officers' Certificate" of the Company or the Guarantor, as the case may
---------------------
be, means a certificate signed by two Officers or by any Officer and either an
Assistant Treasurer or an Assistant Corporate Secretary of the Company or the
Guarantor, as the case may be, that complies with the requirements of Section
314(e) of the Trust Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who (unless
------------------
otherwise provided herein) may be an employee of or counsel for the Company or
the Guarantor, as the case may be, or other counsel that, if required by the
Trust Indenture Act, complies with the requirements of Section 314(e) of the
Trust Indenture Act.
"Original Issue Discount Security" means any Security issued pursuant to
--------------------------------
this Indenture which provides for an amount less than the principal face amount
thereof to be due and payable upon acceleration of the Maturity thereof pursuant
to Section 502.
"Outstanding," when used with respect to any Securities, means, as of the
-----------
date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(1) any such Security theretofore canceled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security Registrar
for cancellation;
(2) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant hereto
(other than pursuant to Section 402) with the Trustee or any Paying Agent
(other than the Company or the Guarantor) in trust or set aside and
segregated in trust by the Company or the Guarantor, as the case may be (if
the Company or Guarantor shall act as its own Paying Agent), for the
Holders of such Securities and any Coupons appertaining thereto, provided
--------
that, if such Securities are to be redeemed, notice of such redemption has
----
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) any such Security with respect to which the Company has effected
defeasance or covenant defeasance pursuant to Section 402, except to the
extent provided in Section 402; and
(4) any such Security which has been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless there shall
have been presented to the Trustee proof satisfactory to it that such
Security is held by a bona fide purchaser in whose hands such Security is a
valid obligation of the Company,
8
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes, (i) the
principal amount of an Original Issue Discount Security that may be counted
in making such determination and that shall be deemed to be Outstanding for
such purposes shall be equal to the amount of the principal thereof that
pursuant to the terms of such Original Issue Discount Security would be
declared (or shall have been declared to be) due and payable upon a
declaration of acceleration thereof pursuant to Section 502 at the time of
such determination, and (ii) the principal amount of any Indexed Security
that may be counted in making such determination and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise provided in or
pursuant to this Indenture, and (iii) Securities beneficially owned by the
Company, the Guarantor or any other obligor upon the Securities or any
Affiliate of the Company or the Guarantor 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, the Guarantor or any other obligor
upon the Securities or any Coupons appertaining thereto or an Affiliate of
the Company, the Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Company or the Guarantor
------------
to pay the principal of, or any premium or interest on, or any Additional
Amounts with respect to, any Security or any Coupon or take any other actions
specifically provided in this Indenture on behalf of the Company or the
Guarantor, as the case may be.
"Person" means any individual, corporation, partnership, association, joint
------
venture, joint-stock company, limited liability company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Conversion" means any city in which any Conversion Agent is
-------------------
located.
"Place of Payment," with respect to any Security, means the place or places
----------------
where the principal of, or any premium or interest on, or any Additional Amounts
with respect to, such Security are payable as provided in or pursuant to this
Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
--------------------
Security evidencing all or a portion of the same indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
9
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 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.
10
"Senior Indebtedness" of the Company means the principal of, premium, if any,
-------------------
and interest on and all other amounts due on or with respect to the following,
whether outstanding at the date of execution of this Indenture or thereafter
incurred or created:
(i) indebtedness of the Company for money borrowed by the Company
(excluding the Securities being issued or to be issued pursuant to this
Indenture, which will rank pari passu with the obligations represented by all
other Securities issued pursuant to this Indenture in right of payment, but
including, without limitation, purchase money obligations and money borrowed
from Guarantor or any Affiliate of Guarantor), whether or not evidenced by
debentures, bonds, notes or other corporate debt securities or similar
instruments issued by the Company (including the Company's obligations with
respect to its 3 3/4% Senior Convertible Debentures due 2000, and its 4 1/2%
Senior Convertible Debentures due 2003);
(ii) obligations to reimburse any bank or other person in respect of
amounts paid under letters of credit;
(iii) leases of real property, equipment or other assets, which
leases are capitalized in the Company's financial statements in accordance with
GAAP;
(iv) commitment, standby and other fees due and payable to financial
institutions with respect to credit facilities available to the Company;
(v) obligations of the Company under interest rate and currency
swaps, floors, caps or other similar arrangements intended to hedge interest
rates or currency exposure;
(vi) obligations secured by any mortgage, pledge, lien or other
encumbrance on property which is owned or held by the Company subject to such
mortgage, pledge, lien or other encumbrance, whether or not the obligations
secured thereby shall have been assumed by the Company;
(vii) obligations of the Company constituting guarantees of
indebtedness of or joint obligations with another or others which would be
included in the preceding clauses (i), (ii), (iii), (iv), (v) or (vi); and
(viii) modifications, renewals, extensions or refundings of any of the
indebtedness, leases, fees or obligations referred to in the preceding clauses
(i), (ii), (iii), (iv), (v), (vi) or (vii), or debentures, notes or other
evidences of indebtedness issued in exchange therefor;
provided that Senior Indebtedness shall not include any particular indebtedness,
-------- ----
lease, fee, obligation, modification, renewal, extension, refunding or exchanged
securities if, under the express provisions of the instrument creating or
evidencing the same, or pursuant to which the same is outstanding, such
indebtedness, lease, fee or obligation or such modification, renewal, extension,
refunding or exchanged security is stated to be not superior in right to payment
to the Securities.
11
"Senior Guarantor Indebtedness" means the principal of, premium, if any,
-----------------------------
and interest on and all other amounts due on or with respect to the following,
whether outstanding at the date hereof or hereafter created or incurred:
(i) indebtedness of the Guarantor for money borrowed by the
Guarantor (excluding the Guarantees being issued, which will rank pari passu
with the obligations represented by all other Guarantees issued pursuant to this
Indenture in right of payment, but including, without limitation purchase money
obligations and money borrowed from any Affiliate of the Guarantor) whether or
not evidenced by debentures, bonds, notes or other corporate debt securities or
similar instruments issued by the Guarantor; provided, however, that Senior
-------- -------
Guarantor Indebtedness shall not include the Guarantor's subordinated guarantee
of the obligations to redeem the common stock of Thermo Fibergen Inc.,
ThermoLyte Corporation and ThermoLase Corporation, the obligations represented
by which shall rank pari passu with the obligations represented by the
Guarantees issued pursuant to this Indenture;
(ii) obligations to reimburse any bank or other person in respect of
amounts paid under letters of credit;
(iii) leases for real property, equipment or other assets,
which leases are capitalized in the Guarantor's consolidated financial
statements in accordance with generally accepted accounting principles;
(iv) commitment, standby and other fees due and payable to financial
institutions with respect to credit facilities available to the Guarantor;
(v) obligations of the Guarantor under interest rate and currency
swaps, floors, caps or other similar arrangements intended to fix or hedge
interest rate obligations or currency exposure;
(vi) obligations secured by any mortgage, pledge, lien or other
encumbrance on property which is owned or held by the Guarantor subject to such
mortgage, pledge, lien or other encumbrance, whether or not the obligations
secured thereby shall have been assumed by the Guarantor;
(vii) obligations of the Guarantor constituting guarantees of
indebtedness of or joint obligations with another or others which would be
included in the preceding clauses (i), (ii), (iii), (iv), (v) or (vi) (including
the Guarantor's guarantee of the principal, premium, if any, and interest on the
4-1/2% Senior Convertible Debentures due 2003 and the 3-3/4% Senior Convertible
Debentures due 2000 of the Company); or
(viii) modifications, renewals, extensions or refundings of any of the
indebtedness, leases, fees or obligations referred to in the preceding clauses
(i), (ii), (iii), (iv), (v), (vi) and (vii), or debentures, notes or other
evidences of indebtedness issued in exchange therefor;
12
provided that Senior Guarantor Indebtedness shall not include any particular
-------- ----
indebtedness, lease, fee, obligation, modification, renewal, extension,
refunding or exchanged security if, under the express provisions of the
instrument creating or evidencing the same, or pursuant to which the same is
outstanding, such indebtedness, lease, fee or obligation or such modification,
renewal, extension, refunding or exchanged security is stated to be not superior
in right of payment to the Guarantees.
"Senior Lender" means any holder of Senior Indebtedness or Senior Guarantor
-------------
Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest on any
-------------------
Registered Security means a date fixed 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, the Guarantor or by one or more other Subsidiaries, or by the Company,
the Guarantor and one or more other Subsidiaries.
"Tax" has the meaning specified in Section 1004.
---
"Tax Affected Security" means any Security held by a non-United States
---------------------
person to whom Additional Amounts have or will become payable.
"Tax Law Change" means any change in, or amendment to, the laws (including
--------------
any regulations or rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting taxation,
or any change in, or amendment to, the application or official interpretation of
such laws, regulations or rulings.
"Trading Days" means (i) if the Common Stock is quoted on 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.
13
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
-------------------
and any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Act or provision, as the case may be, as amended or
replaced from time to time or as supplemented 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, the Guarantor or
--------------
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "Vice President."
--------------
Section 102. Compliance Certificates and Opinions.
------------------------------------
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company or the Guarantor,
as the case may be, shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
14
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has been
satisfied or complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been satisfied or complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by or
covered by an opinion of any specified Person, it is not necessary that all such
matters be certified by or covered by the opinion of only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the Guarantor
may be based, insofar as it relates to legal matters, upon an Opinion of
Counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the opinion with respect to the matters upon 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 or the Guarantor
stating that the information with respect to such factual matters is in the
possession of the Company or the Guarantor unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
15
Section 104. Acts of Holders.
---------------
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing. If, but only if, Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
in or pursuant to this Indenture to be given or taken by Holders of
Securities of such series may, alternatively, be embodied in and evidenced
by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Sixteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company or the Guarantor, as the case may
be. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments or so
---
voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of
a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 315 of the Trust Indenture Act) conclusive in favor of
the Trustee, the Company and the Guarantor and any agent of the Trustee,
the Company, or the Guarantor, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved
in the manner provided in Section 1606.
Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository
that is a Holder of a global Security, may make, give or take, by a proxy,
or proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to
this Indenture or the Securities to be made, given or taken by Holders, and
a Depository that is a Holder of a global Security may provide its proxy or
proxies to the beneficial owners of interests in any such global Security
through such Depository's standing instructions and customary practices.
(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.
16
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the
date of the termination of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depository, by any trust company, bank or other depository reasonably
acceptable to the Company and the Guarantor, wherever situated, if such
certificate shall be deemed by the Company, the Guarantor and the Trustee
to be satisfactory, showing that at the date therein mentioned such Person
had on deposit with such depository, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Company, the Guarantor and
the Trustee to be satisfactory. The Trustee, the Company and the Guarantor
may assume that such ownership of any Bearer Security continues until (i)
another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (ii) such Bearer Security is
produced to the Trustee by some other Person, or (iii) such Bearer Security
is surrendered in exchange for a Registered Security, or (iv) such Bearer
Security is no longer Outstanding. The ownership, principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of the commencement and the date of the
termination of holding the same may also be proved in any other manner
which the Company, the Guarantor and the Trustee deem sufficient.
(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
Resolutions, 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
17
Agent, the Company or the Guarantor in reliance thereon, whether or not
notation of such Act is made upon such Security.
(7) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security
may do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of
such principal amount.
Section 105. Notices, Etc. to Trustee, Company and Guarantor.
-----------------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, the Company or the Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company or the Guarantor by the Trustee or any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Company or the Guarantor addressed to the attention of its Treasurer
at the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing to
the Trustee by the Company or the Guarantor.
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.
18
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.
19
Section 110. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company or the
Guarantor shall bind its successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
-------------------
In case any provision in this Indenture, any Security or any Coupon or
Guarantee shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. Benefits of Indenture.
---------------------
Nothing in this Indenture, any Security, any Coupon, or in the Guarantees
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent or Conversion Agent and their successors hereunder and the
Holders of Securities, Coupons or Guarantees, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
-------------
This Indenture, the Securities, any Coupons and the Guarantees shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts applicable to agreements made or instruments entered into and, in
each case, performed in said state, except that the rights, protections,
obligations, indemnities and immunities of the Trustee under this Indenture
shall be governed by the laws of the State of New York, without regard to the
principles of conflicts of laws of either state.
Section 114. Legal Holidays.
--------------
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Conversion Date,
Redemption Date, Repayment Date, Stated Maturity or Maturity of any Security
shall not be a Business Day at any Place of Payment or any Place of Conversion,
as the case may be, then (notwithstanding any other provision of this Indenture,
any Security, Coupon or Guarantee other than a provision in any Security, Coupon
or Guarantee that specifically states that such provision shall apply in lieu of
this Section) payment of interest or principal (and premium or Additional
Amounts, if any) or delivery for conversion of such Security need not be made at
such Place of Payment or Place of Conversion on such date, but such payment may
be made on the next succeeding Business Day at such Place of Payment or Place of
Conversion with the same force and effect as if made on the Interest Payment
Date, Conversion Date, Redemption Date, Repayment Date or at the Stated Maturity
or Maturity or by such last day for conversion, and no interest shall accrue on
the amount payable on such date or at such time for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, Conversion Date,
Stated Maturity or Maturity or last day for conversion, as the case may be, to
the next succeeding Business Day.
20
Section 115. Taxes.
-----
The Company will pay all stamp taxes and other similar duties, if any, that
may be imposed by the United States or the United Kingdom, or any state or
political subdivision thereof or taxing authority therein, with respect to the
execution or delivery of this Indenture, or the issuance of the Securities,
Coupons or the Guarantees, or the exchange from time to time of the temporary or
permanent Securities in global form for Registered Securities or Bearer
Securities, or with respect to the issue or delivery of shares of Common Stock
on conversion of Securities; provided, however, that the Company shall not be
-------- -------
required to pay any tax or duty which may be payable in respect of the
registration of transfer or exchange of Securities and any transfer involved in
the issue or delivery of shares of Common Stock in a name other than that of the
Holder of the Security or Securities to be converted in accordance with the
provisions of Article Twelve, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Company the amount of
any such tax or duty or has established to the satisfaction of the Company that
such tax or duty has been paid; and provided further, that the Company shall not
-------- -------
be required to pay any tax or duty that may be payable in respect of any accrued
interest paid in connection with the conversion of the Securities.
21
ARTICLE TWO
SECURITIES AND GUARANTEE FORMS
Section 201. Forms Generally.
---------------
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Company Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by or
pursuant to this Indenture or any indenture supplemental hereto, and the
Guarantees, if any, shall be in substantially the form attached to this
Indenture as Exhibit A or in such other form as shall be established pursuant to
---------
a Guarantor Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Security, Coupon or Guarantee as evidenced by their
execution of such Security, Coupon or Guarantee. If the form of Registered
Security, Bearer Security, Coupon, temporary or permanent global Security or
Guarantee is established by action taken pursuant to a Board Resolution of the
Company and the Guarantor, a copy of an appropriate record of such action shall
be certified by the Corporate Secretary or an Assistant Corporate Secretary of
the Company and the Guarantor, respectively, and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Registered Security, Bearer Security,
Coupon, temporary or permanent global Security or Guarantee.
Definitive Securities, definitive Coupons and the Guarantees shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers of the Company executing
such Securities, Coupons or Guarantees, as evidenced by their execution of such
Securities, Coupons or Guarantees.
Unless otherwise specified pursuant to Section 301 and except for temporary
global Bearer Securities (as contemplated by Section 304 hereof), Bearer
Securities shall have Coupons attached.
Section 202. Guarantee by Guarantor; Form of Guarantee.
-----------------------------------------
Subject to Section 1403, the Guarantor by its execution of this Indenture
hereby agrees with each Holder of a Security authenticated and delivered by the
Trustee, and with the Trustee on behalf of each such Holder, to be
unconditionally bound by the terms and provisions of the Guarantee substantially
in the form attached to this Indenture as Exhibit A and authorizes the Chairman
---------
of the Board, President or a Vice President or the Treasurer of the Guarantor to
execute, manually or by facsimile signature in the name and on behalf of the
Guarantor, and to confirm such Guarantee to the Holder of each such Security by
the execution and delivery of
22
each such Security, with such Guarantee endorsed thereon, authenticated and
delivered by the Trustee. When delivered pursuant to the provisions of Section
303 hereof, the Guarantee so set forth on the Security shall bind the Guarantor
notwithstanding the fact that such Guarantee does not bear the signature of the
Guarantor.
Each Guarantee shall be dated the date of the Security upon which it is
endorsed. Reference is made to Articles Fourteen and Eighteen for further
provisions with respect to the Guarantees.
Section 203. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 612, the Trustee's certificate of authentication shall
be in substantially the form attached to this Indenture as Exhibit B.
----------
Section 204. Securities in Global Form.
-------------------------
Unless otherwise provided in 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
23
registered form, or (ii) in the case of a temporary global Security in bearer
form, the Person or Persons specified pursuant to Section 301.
Section 205. Form of Conversion Notice.
-------------------------
At the time of conversion of a Security in accordance with Article Twelve,
the Holder of such Security shall deliver to the Trustee, the Conversion Agent,
the Company and the Guarantor a notice of conversion in substantially the form
attached to this Indenture as Exhibit C.
---------
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered and outstanding under this Indenture is unlimited. The Securities may
be issued in one or more series.
With respect to any Securities to be authenticated and delivered hereunder,
there shall be established in or pursuant to one or more Company Board
Resolutions and Guarantor Board Resolutions, or pursuant to authority granted by
one or more Company Board Resolutions and Guarantor Board Resolutions and,
subject to Section 303, set forth or determined in the manner provided in a
Company and Guarantor Officers' Certificate, or established in one or more
indentures supplemental hereto prior to the issuance of any Securities of a
series any or all of the following; provided that if any of the following are
-------- ----
already provided for in this Indenture, then such provisions shall be applicable
to each series established hereunder unless otherwise provided pursuant to the
Company and Guarantor Board Resolutions establishing such series and set forth
in the applicable Company and Guarantor Officers' Certificate or unless
otherwise provided in any Indenture or Indentures supplemental hereto pertaining
to such series of Securities:
(1) the title or designation of such Securities and the series in
which such Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities
of such title or designation or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration or transfer of, or in
exchange for, or in lieu of, other Securities of such series pursuant to
Section 304, 305, 306, 905 or 1107, upon repayment in part of any Security
of such series pursuant to Article Fifteen, or upon surrender in part of
any Security for conversion or exchange into other securities pursuant to
its terms, or pursuant to the terms of such Securities);
24
(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;
(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;
25
(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 Securities may be
surrendered for transfer, exchange or conversion in the circumstances
described herein and notices or demands to or upon the Company or the
Guarantor in respect of such Securities and this Indenture may be served;
(10) whether any of such Securities are to be redeemable at the option
of the Company and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities may be redeemed, in whole or in part,
at the option of the Company and, if other than by a Company Board
Resolution, the manner in which any election by the Company to redeem the
Securities shall be evidenced;
(11) if the Company is obligated to redeem or purchase any of such
Securities pursuant to any sinking fund or analogous provision or at the
option of any Holder thereof and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the other
terms and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing of such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in which
any of such Securities that are Bearer Securities shall be issuable if
other than the denominations of $1,000 and $10,000;
(13) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion is to be determined;
(14) if the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities may
be determined with reference to an index, indices, formula or other method
or methods (which index, indices, formula or method or methods may be
based, without limitation, on one or more currencies, commodities, equity
indices or other indices), and, if so, the terms and conditions upon which
and the manner in which such amounts shall be determined and paid or
payable;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to any of such
Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
26
(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 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) the subordination provisions with respect to the Securities and
Guarantees if other than as set forth in Article Seventeen or Eighteen,
respectively; and
(21) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such Securities
(which terms shall not be inconsistent with the provisions of this
Indenture, except as permitted by Section 901).
All Securities (and Guarantees endorsed thereon) of any one series and all
Coupons, if any, appertaining to Bearer Securities of such series shall be
substantially identical except as to denomination and Maturity and except as may
otherwise be provided by the Company in or pursuant to the Company Board
Resolution and (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
and the Guarantor, respectively, copies of appropriate records of such actions
shall be certified by the Secretary or an Assistant Secretary of the Company and
the Guarantor, respectively, and delivered to the
27
Trustee at or prior to the delivery of the Officers' Certificates setting forth
the terms of such series.
Section 302. Currency; Denominations.
-----------------------
The principal of, any premium and interest on and any Additional Amounts
with respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities shall be
issuable in registered form without Coupons in denominations of $1,000 and any
integral multiple thereof, and Bearer Securities shall be issuable in
denominations of $1,000 and $10,000 (or any other authorized denominations) with
Coupons attached.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
Securities shall be executed on behalf of the Company by any Officer under
its corporate seal reproduced thereon and attested by its Corporate Secretary
(provided that the Corporate Secretary shall not attest his or her own signature
as an Officer) or one of its Assistant Corporate Secretaries. Coupons shall be
executed on behalf of the Company by any Officer. The signature of any of these
officers on the Securities or any Coupons appertaining thereto may be manual or
facsimile.
Securities, Coupons appertaining thereto and Guarantees bearing the manual
or facsimile signatures of individuals who were at any time the proper Officers
of the Company or the Guarantor shall bind the Company and the Guarantor,
respectively, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities, Coupons or Guarantees or did not hold such offices at the date of
such Securities, Coupons or Guarantees.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, having endorsed thereon
Guarantees of the Guarantor, to the Trustee for authentication and, provided
that the Company and Guarantor Board Resolutions, Company and Guarantor
Officers' Certificate (if the terms of such Securities are provided therein
pursuant to authority granted by Company and Guarantor Board Resolution) or
supplemental indenture or indentures with respect to such Securities referred to
in Section 301 and a Company Order for the authentication and delivery of such
Securities and a Guarantor Order (which may be included as part of the Company
Order for the authentication and delivery of the Securities) approving the
delivery of the Guarantees endorsed thereon have been delivered to the Trustee,
the Trustee in accordance with the Company and Guarantor Orders and subject to
the provisions hereof and of such Securities shall authenticate and deliver such
Securities having such Guarantees; provided, however, that, in connection with
-----------------
its original issuance, no Bearer Security shall be mailed or otherwise delivered
to any location in the United States; and provided, further, that a Bearer
-----------------
Security (other than a temporary global Bearer Security) may be delivered
outside the United States in connection with its original issuance only if the
certifications described in Section 304 are provided in accordance with the
provisions of Section 304. If any Security shall be represented by a permanent
global Security, then, for purposes of this Section and Section 304,
28
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 (or related Guarantee) unless all
appurtenant Coupons for interest then matured other than matured coupons in
default have been detached and canceled. If all the Securities of any one series
are not to be issued at one time and if a Board Resolution relating to such
Securities or Officers' Certificate 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, and Guarantees have been established or approved by or pursuant to
Board Resolutions of the Company and the Guarantor in conformity with
Sections 201 and 301 of this Indenture;
(b) all conditions precedent to the authentication and delivery of
such Securities and Coupons, if any, appertaining thereto, and to the
delivery of such Guarantees have been complied with and that such
Securities, Coupons and Guarantees, when completed by appropriate
insertions, executed under the Company's corporate seal and attested by
duly authorized officers of the Company (in the case of the Securities or
Coupons) or when completed by appropriate insertions, executed under the
Guarantor's corporate seal and attested by duly authorized officers of the
Guarantor (in the case of the Guarantees), delivered by duly authorized
officers of the Company or the Guarantor, as the case may be, to the
Trustee for authentication pursuant to this Indenture, and authenticated
and delivered by the Trustee and issued by the Company and the Guarantor in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legally valid and binding obligations of the
Company and of the Guarantor, respectively, enforceable in accordance with
their terms, subject, in the case of the Securities to bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent conveyance,
fraudulent transfer or other similar laws of general applicability to the
Company and relating to or affecting creditors' rights and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and subject, in the case of the
Guarantees, to bankruptcy, insolvency, reorganization, moratorium,
arrangement, fraudulent conveyance, fraudulent transfer or other similar
laws of general applicability to the Guarantor and relating to or affecting
creditors' rights and to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law); and
29
(c) this Indenture has been qualified under the Trust Indenture Act;
and
(2) a Company Officers' Certificate and Guarantor Officer's
Certificate, each stating that, to the best knowledge of the Persons
executing such certificate, no Default or Event of Default with respect to
any of the Securities shall have occurred and be continuing.
If all of the Securities of any series are not to be issued at one time,
unless requested by the Trustee, it shall not be necessary to deliver an Opinion
of Counsel at the time of issuance of each Security, but such opinion, with such
modifications as counsel shall deem appropriate, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Company that the Trustee authenticate
additional Securities of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Security shall be dated as of the date specified in or pursuant to
this Indenture.
No Security or Guarantee endorsed thereon or Coupon appertaining to such
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose, unless there appears on such Security a certificate
of authentication substantially in the form provided for in Section 203 or 612
executed by or on behalf of the Trustee or by the Authenticating Agent by the
manual signature of one of its authorized officers. Such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Except as permitted by
Section 306 or 307, the Trustee shall not authenticate or deliver any Bearer
Security (or related Guarantee) 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 and a Guarantor Order
for authentication and delivery, the Trustee shall authenticate and deliver, in
the manner provided in Section 303, temporary Securities in lieu thereof which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the Definitive
Securities in lieu of which they are issued, in registered form or, if
authorized in or pursuant to this Indenture, in bearer form with one or more
Coupons or without Coupons, and having endorsed thereon Guarantees of the
Guarantor substantially of the tenor of the definitive Guarantees, with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities or Guarantees may determine, as conclusively
evidenced
30
by their execution of such Securities or Guarantees. Such temporary Securities
may be in global form.
(b) Except in the case of temporary global Bearer Securities, which shall
be exchanged in accordance with the provisions of clause (c) of this Section
304, if temporary Securities are issued, the Company shall cause Definitive
Securities to be prepared without unreasonable delay. After the preparation of
Definitive Securities of the same series and containing terms and provisions
that are identical to those of any temporary Securities, such temporary
Securities shall be exchangeable for such Definitive Securities with Guarantees
of the Guarantor endorsed thereon upon surrender of such temporary Securities at
an Office or Agency for such Securities, without charge to any Holder thereof.
Upon surrender for cancellation of any one or more temporary Securities
(accompanied by any unmatured Coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of Definitive Securities of authorized denominations of
the same series and containing identical terms and provisions which have
endorsed thereon the Guarantees of the Guarantor; provided, however, that no
-------- -------
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
-------- -------
exchange for a temporary 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 in all
respects be entitled to the same benefits under this Indenture as Definitive
Securities of such series.
(c) All or a portion of the Securities constituting Bearer Securities may
be initially issued as temporary global Bearer Securities without Coupons or
conversion rights, having endorsed thereon the Guarantees. Such temporary global
Bearer Securities shall be deposited on the applicable closing date on behalf of
the subscribers for the Securities represented thereby with the Common
Depository, for credit to their respective accounts (or to such other accounts
as they may direct) at ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear Clearance System ("Euroclear"), or Cedel
Bank, Societe Anonyme ("Cedel").
On or before the Exchange Date, the Company shall deliver to the Paying
Agent in London at its principal London office or to its designated agent
outside the United States, definitive Bearer Securities with Guarantees of the
Guarantor endorsed thereon. On or after the applicable Exchange Date, the
temporary global Bearer Securities may be surrendered by the Common Depository
to the Trustee, 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
31
as to the portion of the temporary global Bearer Securities held for its account
then to be exchanged, each substantially in the form of Exhibit E hereto to the
---------
effect that it has received a certificate or certificates substantially in the
form of Exhibit D hereto dated no earlier than 15 days prior to the Exchange
---------
Date and signed by the person appearing in its records as the owner of the
temporary global Bearer Securities or portions thereof being exchanged. The
Company hereby appoints the principal office of the Paying Agent in London,
England, or its designated agent, as its agent outside the United States where
definitive Bearer Securities may be delivered in exchange for the temporary
global Bearer Securities or portions thereof. Each beneficial owner of any
portion of the temporary global Bearer Securities shall be entitled to take
delivery of definitive Bearer Securities only at such office. 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.
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.
32
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
aggregate principal amount bearing a number not contemporaneously outstanding
and containing identical terms and provisions, having endorsed thereon the
Guarantee duly executed by the Guarantor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender 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, having
endorsed thereon Guarantees of the Guarantor which the Holder is entitled to
receive. Registered Securities of any series may not be exchanged for Bearer
Securities.
At the option of the Holder, definitive Bearer Securities of such series
may be exchanged at any time (except as otherwise provided in this Indenture)
for Registered Securities or Bearer Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender 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
33
be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company, the Guarantor and the Trustee in an amount equal to
the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company, the Guarantor and the
Trustee if there is furnished to them such security or indemnity as they 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.
Whenever any Securities are surrendered for exchange as contemplated by the
immediately preceding two paragraphs, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities (with all Coupons, in the case of
the issuance of Bearer Securities), having endorsed thereon Guarantees of the
Guarantor, which the Holder making the exchange is entitled to receive.
If the Holder of definitive Bearer Securities or definitive Registered
Securities requests in writing that such Securities be exchanged for an interest
in the applicable permanent global Registered Security, such Bearer Securities
or Registered Securities (as the case may be) will be exchangeable into an equal
aggregate principal amount of beneficial interest in the permanent global
Registered Security; provided that in the case of definitive Bearer Securities,
-------- ----
such Bearer Securities are only exchanged in the manner set forth in this
Section 305 with respect to the exchange of definitive Bearer Securities for
Registered Securities and in the case of Registered Securities, such exchange is
made in accordance with the rules and procedures then in effect of the
Depository. Upon any exchange as provided in the immediately preceding
sentence, the Trustee shall cancel such Bearer Securities or Registered
Securities (as the case may be) and cause, or direct any custodian for the
permanent global Registered Security to cause, in accordance with the standing
instructions and procedures existing between the Depository and any such
custodian, the aggregate principal amount of Securities represented by the
permanent global Registered Security to be increased accordingly. If no
permanent global Registered Securities are then outstanding, the Company shall
issue and the Trustee shall authenticate a new
34
permanent global Registered Security in the appropriate principal amount, having
endorsed thereon a Guarantee duly executed by the Guarantor.
Notwithstanding the foregoing, except as otherwise provided in or pursuant
to this Indenture, any permanent global Registered Security shall be
exchangeable for Definitive 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 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
35
payable on such Interest Payment Date or proposed date for payment of Defaulted
Interest, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Registered Security shall be payable in
accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities, and all Guarantees endorsed thereon, shall be the valid obligations
of the Company or the Guarantor, as the case may be, evidencing the same debt
and entitling the Holders thereof to the same benefits under this Indenture as
the Securities and all the Guarantees endorsed thereon surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any stamp or similar tax or other governmental charge
and any other expenses (including fees and expenses of the Trustee) that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 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 like tenor and the same
series under Section 1103 and ending at the close of business on the day of such
selection, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except in the case of
any Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except, to the
extent provided with respect to such Bearer Security, that such Bearer Security
may be exchanged for a Registered Security of like tenor and the same series,
provided that such Registered Security shall be immediately surrendered for
redemption with written instruction for payment consistent with the provisions
of this Indenture or (iv) to issue, register the transfer of or exchange any
Security which, in accordance with its terms, has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not to
be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount, having endorsed thereon the
Guarantee of the Guarantor, and bearing a number not contemporaneously
outstanding, with
36
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, the Guarantor and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company, the Guarantor or the Trustee that such Security or
Coupon has been acquired by a bona fide purchaser, the Company shall execute
and, upon the Company's request the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
Coupon appertains with all appurtenant Coupons not destroyed, lost or stolen, a
new Security of the same series containing identical terms and of like principal
amount, having endorsed thereon the Guarantee of the Guarantor, and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains;
provided, however, that any Bearer Security or any Coupon shall be delivered
-------- -------
only outside the United States and, if the Securities of such series are listed
on the London Stock Exchange or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, such delivery shall occur at the Office or Agency located in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as Securities of such series are listed on such exchange;
and provided, further, that all Bearer Securities shall be delivered and
-------- ------
received in person.
Notwithstanding the foregoing provisions of this Section 306, in case any
mutilated, destroyed, lost or stolen Security or Coupon has become or will
become due and payable within seven (7) days, the Company in its discretion, but
subject to any conversion rights, may, instead of issuing a new Security, pay
such Security or Coupon; provided, however, that payment of principal of, any
-------- -------
premium or interest on or any Additional Amounts with respect to any Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at the applicable Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any stamp or similar tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
37
Every new Security with any Coupons appertaining thereto, and the Guarantee
of the Guarantor endorsed thereon, issued pursuant to this Section 306 in lieu
of any mutilated, destroyed, lost or stolen Security, or in exchange for a
Security to which a mutilated, destroyed, lost or stolen Coupon appertains shall
constitute a separate obligation of the Company and the Guarantor, respectively,
whether or not the mutilated, destroyed, lost or stolen Security and Coupons
appertaining thereto or the mutilated, destroyed, lost or stolen Coupon shall be
at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
such series and any Coupons, and related Guarantees, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this
Indenture with respect to particular Securities or generally, shall be exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities or Coupons.
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
-------------------------------------------------------------
Interest and Certain Additional Amounts Preserved.
-------------------------------------------------
(a) Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made (i) by check
mailed or delivered, in the case of Registered Securities, to the address of the
Person entitled thereto as such address shall appear in the Security Register
or, in the case of Bearer Securities, upon presentation and surrender of the
appropriate Coupon appertaining thereto, or (ii) at the option of the Company
with the consent of any Paying Agent, (1) in the case of a Bearer Security, upon
presentation and surrender of the applicable Coupon at an applicable Office or
Agency for such series outside the United States, except as otherwise provided
in Section 1002, by transfer to an account maintained by the payee with a bank
located outside the United States, or (2) in the case of a Registered Security,
by transfer to an account maintained by the payee with a bank located inside the
United States.
Unless otherwise provided 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.
38
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Bearer Security shall, except as
otherwise provided in Section 1002, be payable only at an Office or Agency for
such Securities located outside the United States.
Interest on any temporary global Bearer Security shall be payable only
after the issuance of a Definitive Security for which it is exchangeable as
provided in Section 304, except as otherwise provided pursuant to this Indenture
or the Securities.
(b) Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
------------------
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Person in whose name such Registered Security (or a Predecessor Security
thereof) shall be registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on such Registered Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as in this clause
provided. Thereupon, the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of such Registered Security (or a
Predecessor Security thereof) at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The Trustee
may, in its discretion, in the name and at the expense of the Company cause a
similar notice to be published at least once in an Authorized Newspaper of
general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such Registered
Security (or a Predecessor Security thereof) shall be registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2). In case a Bearer Security is surrendered at the
applicable Office or Agency for such Security in exchange for a Registered
Security after the close of business at such Office or Agency on any Special
Record Date and before the opening of business at such Office or Agency on the
related proposed date for
39
payment of Defaulted Interest, such Bearer Security shall be surrendered without
the Coupon relating to such Defaulted Interest and Defaulted Interest shall not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which such Security may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(c) In the case of any Registered Security which is converted into Common
Stock pursuant to Article Twelve after any Regular Record Date and on or prior
to the next succeeding Interest Payment Date (other than any Registered Security
whose Maturity is prior to such Interest Payment Date), interest whose Stated
Maturity is on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
such Registered Security (or one or more Predecessor Securities) is registered
at the close of business on such Regular Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any
Security which is converted pursuant to Article Twelve, accrued interest from
the immediately preceding Interest Payment Date until the Conversion Date shall
be payable to the converting Holder within five Business Days after the
Conversion Date. Upon presentment for conversion of any Securities pursuant to
Article Twelve, the Paying Agent shall promptly notify the Company of the amount
of any accrued interest due and owing thereon and the Company shall pay to the
Paying Agent an amount sufficient to pay the accrued interest due on such
Securities and Additional Amounts, if any, thereon, and the Paying Agent shall
apply the amounts so paid to it to the payment of such accrued interest and
Additional Amounts, if any, thereon in accordance with the terms of the
Securities.
(d) Subject to the foregoing provisions of this Section 307 and Section
305, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
---------------------
Title to any Bearer Security or Coupon shall pass by delivery. The
Company, the Guarantor, the Trustee, the Paying Agent and any other agent of the
Company, the Guarantor, the Trustee or the Paying Agent may treat the bearer of
any Bearer Security or the temporary global Bearer Security and the bearer of
any Coupon as the absolute owner of such Security or Coupon, as the case may be,
for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or Coupon be overdue,
and neither the Company, the Guarantor, the Trustee, the Paying Agent nor any
other agent of the Company, the Guarantor, the Trustee or the Paying Agent shall
be affected by notice to the contrary.
40
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee shall treat the Person in whose name such
Registered Security is registered in the Security Register as the absolute owner
of such Registered Security for the purpose of receiving payment of principal
of, any premium and (subject to Sections 305 and 307) interest on and any
Additional Amounts with respect to such Registered Security and for all other
purposes whatsoever, whether or not any payment with respect to such Registered
Security shall be overdue, and neither the Company, the Guarantor, the Trustee
or any agent of the Company, the Guarantor or the Trustee shall be affected by
notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depository 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 Guarantor, the Trustee, and any
agent of the Company, the Guarantor or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Guarantor, the
Trustee, any Paying Agent, any Conversion Agent or the Security Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Section 309. Cancellation.
------------
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be canceled promptly by the Trustee. The Company or the Guarantor may at
any time deliver to the Trustee for cancellation any Securities or Coupons
previously authenticated and delivered hereunder which the Company or the
Guarantor may have acquired in any manner whatsoever, and all Securities or
Coupons so delivered shall be canceled promptly by the Trustee. No Securities or
Coupons shall be authenticated in lieu of or in exchange for any Securities or
Coupons canceled as provided in this Section 309, except as expressly permitted
by or pursuant to this Indenture. All canceled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee, unless by a Company Order the
Company directs their return to it.
Section 310. Computation of Interest.
-----------------------
Except as otherwise provided in or pursuant to this Indenture or in the
Securities of any series, interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
-------------
The Company in issuing Registered Securities may use "CUSIP" numbers (if
then generally in use) in addition to serial numbers, and in issuing Bearer
Securities may use "ISIN"
41
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
(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 or the
Guarantor and thereafter repaid to the Company or the Guarantor or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
42
(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 or the Guarantor, in the case of (i), (ii), or (iii) above,
has irrevocably deposited or caused to be deposited with the Trustee as
trust funds (immediately available to the Holders in the case of clause (i)
above) in trust for such purpose, money in the Currency in which such
Securities are payable in an amount sufficient to pay and discharge the
entire indebtedness on such Securities and any Coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation, including the
principal of, any premium and interest on, and, to the extent that the
Securities of such series provide for the payment of Additional Amounts
thereon and the amount of any such Additional Amounts is at the time of
deposit reasonably determinable by the Company (in the exercise by the
Company of its sole and absolute discretion), any Additional Amounts with
respect to such Securities and any Coupons appertaining thereto, to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Maturity thereof, as the case may be;
(2) the Company or the Guarantor, as the case may be, has paid or caused
to be paid all other sums payable hereunder by the Company or the Guarantor
with respect to the Outstanding Securities of such series and any Coupons
appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company and the
Guarantor to the Trustee under Section 606, the obligations of the Company and
the Guarantor to any Authenticating Agent under Section 612, and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section,
the obligations of the Company, the Guarantor and the Trustee with
43
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
and the Guarantor shall be deemed to have been discharged from their respective
obligations with respect to such Outstanding Securities and any Coupons
appertaining thereto, and with respect to the corresponding Guarantees on the
date the conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
----------
Company and the Guarantor shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and Guarantees and any
Coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of clause (5) of this Section 402 and the
other Sections of this Indenture referred to in clauses (i) and (ii) below, and
to have satisfied all of its other obligations under such Securities and any
Coupons appertaining thereto and under such corresponding Guarantees and this
Indenture insofar as such Securities and any Coupons appertaining thereto and
such Guarantees are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Outstanding Securities and
Guarantees and any Coupons appertaining thereto to receive, solely from the
trust fund described in clause (4) of this Section 402 and as more fully set
forth in such Section, payments in respect of the principal of (and premium, if
any) and interest, if any, on, and Additional Amounts, if any, with respect to,
such Securities and Guarantees and any Coupons appertaining thereto when such
payments are due, (ii) the obligations of the Company and the Trustee with
respect to such Securities under Sections 304, 305, 306, 403, 1002 and 1003,
with respect to the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1004 (but only to the extent that the Additional Amounts
payable with respect to such Securities exceed the amount deposited in respect
of such Additional Amounts pursuant to Section 402(4)(a) below), and any
obligation of the Guarantor relating to a surviving obligation of the Company,
(iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, (iv) any rights of conversion or exchange of such Securities and (v)
this Section 402. The Company may exercise its option under this Section 402(2)
notwithstanding the prior exercise of its option under clause (3) of this
Section 402 with respect to such Securities and any Coupons appertaining
thereto.
44
(3) Upon the Company's exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the Company
and the Guarantor, as the case may be, shall be released from its obligations
under Sections 1005 and Section 102 and, to the extent specified pursuant to
Section 301, any other covenant applicable to such Securities, with respect to
such Outstanding Securities and any Coupons appertaining thereto on and after
the date the conditions set forth in clause (4) of this Section 402 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
-------------------
Coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with any such
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any Coupons appertaining thereto, the Company
and the Guarantor may omit to comply with, and shall have no liability in
respect of, any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any other provision
herein or in any other document and such omission to comply shall not constitute
a default or an Event of Default under Section 501(4) or otherwise, as the case
may be, but, except as specified above, the remainder of this Indenture and such
Securities and Coupons appertaining thereto, and the Guarantees endorsed
thereon, shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or
(3) of this Section 402 to any Outstanding Securities of or within a series and
any Coupons appertaining thereto, or to any Guarantees endorsed thereon:
(a) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 607
who shall agree to comply with the provisions of this Section 402 applicable to
it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Securities and any Coupons appertaining thereto, (i) an
amount in Dollars, or (ii) Government Obligations applicable to such Securities
and Coupons appertaining thereto (determined on the basis of the Currency in
which such Securities and Coupons appertaining thereto are then specified as
payable at Stated Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of principal of (and
premium, if any) and interest, if any, on such Securities and any Coupons
appertaining thereto, money in an amount, or (iii) a combination thereof, in any
case, in an amount, sufficient, without consideration of any reinvestment of
such principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (y) the
principal of (and premium, if any) and interest, if any, on, and, to the extent
that such Securities provide for the payment of Additional Amounts thereon and
the amount of any such Additional Amounts is at the time of deposit reasonably
determinable by the Company, any Additional Amounts with respect to, such
Outstanding Securities and any Coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (z) any
mandatory sinking fund payments or analogous
45
payments applicable to such Outstanding Securities and any Coupons appertaining
thereto on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities and any Coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company or the Guarantor is a
party or by which it is bound.
(c) No Default or Event of Default with respect to such Securities and any
Coupons appertaining thereto shall have occurred and be continuing on the date
of such deposit and, with respect to defeasance only, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under clause (2) of this Section 402, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from the Internal Revenue Service a letter ruling,
or there has been published by the Internal Revenue Service a revenue ruling, or
(ii) since the date of execution of this Indenture, there has been a change in
the applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of such Outstanding
Securities and any Coupons appertaining thereto will not recognize income, gain
or loss for Federal income tax purposes as a result of such defeasance and will
be subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not occurred.
(e) In the case of an election under clause (3) of this Section 402, the
Company and the Guarantor shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred.
(f) The Company and the Guarantor shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance under clause (2)
or (3) of this Section 402 (as the case may be) have been complied with.
(g) Each of the Company and the Guarantor shall have delivered to the
Trustee an Officers' Certificate to the effect that neither such Securities nor
any other Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.
(h) Such defeasance or covenant defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
46
(i) Such defeasance or covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act unless such trust shall be registered under such
Act or exempt from registration thereunder.
(j) Notwithstanding any other provisions of this Section 402(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company or the Guarantor in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee-- collectively for purposes of this Section 402(5) and
Section 403, the "Trustee") pursuant to clause (4) of Section 402 in respect of
-------
any Outstanding Securities of any series and any Coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any Coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any Coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
The Company and the Guarantor shall pay and indemnify the Trustee and its
officers, directors, employees and agents against any tax, fee or other charge,
imposed on or assessed against the Government Obligations deposited pursuant to
this Section 402 or the principal or interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of such Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (4) of this Section 402 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Section 402.
Section 403. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations deposited with the Trustee pursuant to Section 401 or
402 shall be held in trust and applied by it, in accordance with the provisions
of the Securities, the Coupons appertaining thereto, the Guarantees and this
Indenture, as applicable, to the payment, either directly or through any Paying
Agent (including the Company or the Guarantor acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the principal,
47
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, Company and Guarantor Board Resolutions or Company and
Guarantor Officers' Certificate establishing the terms of such series pursuant
to this Indenture:
(1) default in the payment of any interest on, or any Additional Amounts
payable in respect of any interest on, any Security of such series when such
interest or such Additional Amounts, as the case may be, become due and payable,
and continuance of such default for a period of 10 days, whether or not such
payment is prohibited by the subordination provisions of Article Seventeen or
Article Eighteen; or
(2) default in the payment of the principal of or premium, if any, on, or
any Additional Amounts payable in respect of the principal of or premium, if
any, on any Security of such series when due upon Maturity (whether upon
redemption or otherwise), whether or not such payment is prohibited by the
subordination provisions of Article Seventeen or Article Eighteen; or
(3) default in the payment of any sinking fund payment, or analogous
payment, when and as due by the terms of a Security of such series, whether or
not such payment is prohibited by the subordination provisions of Article
Seventeen or Article Eighteen; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company or the Guarantor in this Indenture or any Security of such series
(other than a covenant or warranty for which the consequences of breach or
nonperformance are addressed elsewhere in this Section 501 or in the Securities
or in a covenant or warranty which has expressly been included in this Indenture
or a Security of that series, whether or not by means of a supplemental
Indenture, solely for the benefit of Securities of a series other than such
series), and continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
48
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 or the Guarantor pursuant to or under or within the meaning
of any Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the entry of an order for relief against it in an
involuntary case or proceeding or the commencement of any case against it;
(c) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(d) makes a general assignment for the benefit of its creditors;
(e) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
(f) consents to the filing of such petition or the appointment of or
taking possession by a Custodian; or
(6) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(a) is for relief against the Company or the Guarantor in an
involuntary case or proceeding, or adjudicates the Company or the Guarantor
insolvent or bankrupt;
(b) appoints a Custodian of the Company or the Guarantor or for any
substantial part of their respective property; or
(c) orders the winding up or liquidation of the Company or the
Guarantor;
and the order or decree remains unstayed and in effect for 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 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
49
registered or certified mail, to the Company and the Guarantor by the Trustee,
or to the Company, the Guarantor and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities of that series;
provided, however, that if such default under 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 the Guarantor (and to the Trustee if given by the Holders), and upon
any such declaration such principal or such lesser amount shall become
immediately due and payable.
Notwithstanding any other provision of 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, the Guarantor and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company or the Guarantor has paid or deposited with the Trustee a
sum of money sufficient to pay
50
(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.
51
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, the Guarantor or any other obligor upon such Securities and
any Coupons appertaining thereto and collect the monies adjudged or decreed to
be payable in the manner provided by law out of the property of the Company, the
Guarantor or any other obligor upon such Securities and any Coupons appertaining
thereto, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
Coupons appertaining thereto by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, the Guarantor or any other obligor
upon the Securities or the property of the Company, the Guarantor, or such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company or the Guarantor for the payment of any overdue
principal, premium, interest or Additional Amounts) shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding, including:
(1) to file and prove a claim for the whole amount, or such lesser amount
as may be provided for in the Securities of such series, of the principal and
any premium, interest and Additional Amounts owing and unpaid in respect of the
Securities and any Coupons appertaining thereto and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents or counsel) and of the
Holders of Securities or any Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
52
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.
------------------------------
Subject to Articles Seventeen and Eighteen, 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
53
Guarantees, the Securities of any series or any Coupons appertaining thereto, or
for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(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,
54
then and in every such case the Company, the Guarantor, the Trustee and each
such Holder shall, subject to any determination in such proceeding, be restored
severally and respectively to their 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.
55
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.
---------------------------------------
Each of the Company and the Guarantor covenants that (to the extent that it
may lawfully do so) it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor expressly waives (to the extent that it may lawfully
do so) all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 515. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 515 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right to convert any Security in
accordance with Article Twelve.
56
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee; Certain Duties and Responsibilities.
---------------------------------------------------------------
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or other paper or
document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company or the Guarantor mentioned
herein shall be sufficiently evidenced by a Company Request or a Company Order
or Guarantor Request or Guarantor Order, as the case may be (in each case, other
than delivery of any Security, together with any Coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein) and any resolution of the
Board of Directors of the Company or the Guarantor, as the case may be, shall be
sufficiently evidenced by a Board Resolution of the Company or the Guarantor, as
the case may be;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
shall be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by or pursuant to this Indenture at the request or
direction of any of the Holders of Securities of any series or any Coupons
appertaining thereto pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
57
make such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company and the Guarantor, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(8) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(9) no provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(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
58
Section 703(3), notice of such Default hereunder known to the Trustee, unless
such Default shall have been cured or waived; provided, however, that, except in
-------- -------
the case of a default in the payment of the principal of (or premium, if any),
or interest, if any, on, or Additional Amounts or any sinking fund or purchase
fund installment with respect to, any Security of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the best interest of the Holders of Securities and Coupons
of such series, and provided, further, that in the case of any Default of the
-------- -------
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 60 days after the
occurrence thereof.
Section 603. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any Coupons shall be taken as the
statements of the Company or the Guarantor, as the case may be, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or Coupons appertaining
thereto or the Guarantees or the Common Stock issuable upon the conversion of
Securities in accordance with the provisions of Article Twelve, except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility and Qualification
on Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of the
Securities or the proceeds thereof.
Section 604. May Hold Securities; Act as Trustee Under Other Indenture.
---------------------------------------------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee, the Company,
or the Guarantor, in its individual or any other capacity, may become the owner
or pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of
the Trust Indenture Act, may otherwise deal with the Company and the Guarantor
with the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
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, the Guarantor 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
59
it hereunder except as otherwise agreed in writing with the Company or the
Guarantor, as the case may be.
Section 606. Compensation and Reimbursement.
------------------------------
Each of the Company and the Guarantor agrees:
(1) to pay to the Trustee from time to time reasonable compensation as
shall be agreed in writing between the Company on the one hand and the Trustee
on the other for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its officers, directors, employees and
agents for, and to hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder, except to the extent that any such loss,
liability or expense was due to the Trustee's negligence or bad faith. The
indemnification provided for herein shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee.
As security for the performance of the obligations of the Company under
this Section 606, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501 is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. "Trustee" for purposes
-------
of this Section 606 shall include any predecessor Trustee but the negligence or
bad faith of any Trustee shall not affect the rights of any other Trustee under
this Section 606.
Section 607. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States, eligible under
Section 310(a)(1) of the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the Trust
Indenture Act) of at least $50,000,000 and subject to supervision or examination
by Federal
60
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.
Section 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(3) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company and the Guarantor.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Company, the
Guarantor or any Holder of a Security of such series who has been a bona
fide Holder of a Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company, the
Guarantor or any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged
to be bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board
Resolution, may remove the Trustee with respect to all Securities or the
Securities of such series, or (ii) subject to Section 315(e) of the Trust
Indenture Act, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
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(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 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, the Guarantor and the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties hereunder of the retiring Trustee;
but, on the request of the Company, the Guarantor or such successor Trustee,
such retiring Trustee, upon payment of its
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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.
(2) Upon the appointment hereunder of any successor Trustee with respect
to the Securities of one or more series, the Company, the Guarantor, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (b) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (c) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and, upon the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates other than as hereinafter expressly set forth, and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company, the Guarantor
or such successor Trustee, such retiring Trustee, upon payment of its charges
with respect to the Securities of that or those series to which the appointment
of such successor relates and subject to Section 1003 shall duly assign,
transfer and deliver to such successor Trustee, to the extent contemplated by
such supplemental indenture, the property and money held by 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 or the Guarantor shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (1) or (2) of this Section,
as the case may be.
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(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 to which the Trustee shall be a party, or any
Corporation succeeding to all or all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
Corporation shall be otherwise qualified and eligible under this Article Six,
without the execution
or filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated but not delivered
by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 611. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company, the
Guarantor or any other obligor upon the Securities, the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company, the Guarantor or any such other obligor.
Section 612. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint one or more Authenticating Agents acceptable to the
Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment, or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. 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.
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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.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee, the Company and the Guarantor. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent, the Company and the Guarantor. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall (i) mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of the series with respect to which
such Authenticating Agent shall serve, as their names and addresses appear in
the Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more series
of Securities pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
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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
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, the Guarantor 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.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
Section 701. Company and Guarantor to Furnish Trustee Names and Addresses of
---------------------------------------------------------------
Holders.
-------
In accordance with Section 312(a) of the Trust Indenture Act, with respect
to each series of the Securities, the Company and the Guarantor shall furnish or
cause to be furnished to the Trustee:
(1) semi-annually, not later than 15 days after the Regular Record Date or
upon such other dates as are set forth in or pursuant to the Board Resolution,
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 or the Guarantor of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is furnished, excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of the Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights, 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, the Guarantor and the Trustee that neither the Company,
the Guarantor nor the Trustee, nor any agent of any of them, shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with Section 312(c) of
the Trust Indenture Act, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(1) Within 60 days after 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
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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 and Guarantor.
--------------------------------
The Company and the Guarantor, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company and the
Guarantor are required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company and the
Guarantor may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; or, if the Company or the
Guarantor is not required to file information, documents or reports
pursuant to either of said Sections, then they shall file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company and the Guarantor with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by the Company and the Guarantor pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company or Guarantor May Consolidate, Etc., Only on Certain
-----------------------------------------------------------
Terms.
-----
Neither the Company nor the Guarantor shall consolidate with or merge into
any other Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, and neither the Company nor the Guarantor
shall permit any Person to consolidate with or merge into the Company or the
Guarantor, as the case may be, or convey, transfer or lease all or substantially
all of its properties and assets to the Company or the Guarantor, as the case
may be, unless either:
(a) in case the Company or the Guarantor, as the case may be, shall
consolidate with or merge into another Person or convey, transfer or lease
all or substantially all of its properties and assets to any Person, the
Person formed by such consolidation or into which the Company or the
Guarantor, as the case may be, is merged or the Person which acquires by
conveyance or transfer, or which leases, all or substantially all of the
properties and assets of the Company or the Guarantor, as the case may be,
shall be (i) a corporation, limited liability company, partnership or trust
organized and validly existing under the laws of the United States or (ii)
a corporation, limited liability company, partnership or trust organized
and validly existing under the laws of a jurisdiction other than the United
States (a "Foreign Entity") that shall expressly assume, by an indenture
--------------
supplemental hereto executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, in the case of the Company, the due
and punctual payment of the principal of (and premium, if any) and interest
and Additional Amounts on all the Securities and Coupons and the
performance and observance of every covenant of this Indenture on the part
of the Company to be performed or observed and shall have provided for
conversion rights in accordance with Article Twelve, and, in the case of
the Guarantor, the due and punctual performance of the Guarantees and the
performance and observance of every covenant of this Indenture on the part
of the Guarantor to be performed or observed. In the event that such
Person is a Foreign Entity, it shall expressly agree to make payments under
the Securities and Coupons free of any deduction or withholding for any and
all then existing or future withholding taxes, levies, imposts and charges
whatsoever imposed by or for the account of the jurisdiction where such
Foreign Entity is generally subject to taxation (or any political
subdivision or taxing authority thereof or therein) in a manner equivalent
to that set forth herein, subject to the exceptions contained elsewhere
herein;
(b) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or one of its
Subsidiaries or of the Guarantor or one of its Subsidiaries as a result of
such transaction as having been incurred by the Company, the Guarantor or
such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing; and
69
(c) the Company or the Guarantor, as the case may be, has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
Section 802. Successor Corporation Substituted.
---------------------------------
Upon any consolidation by the Company or the Guarantor, as the case may be,
with or merger by the Company or the Guarantor, as the case may be, into any
other Person or any conveyance, transfer or lease of all or substantially all of
the properties and assets of the Company or the Guarantor, as the case may be,
in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company or the Guarantor, as the case may be, is
merged or to which such conveyance, transfer or lease is made, shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
or the Guarantor, as the case may be, under this Indenture with the same effect
as if such successor Person had been named as the Company or the Guarantor, as
the case may be, herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or Coupons, the Company,
when authorized by or pursuant to a Board Resolution, the Guarantor, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the
Guarantor, as the case may be, and the assumption by any such successor of the
covenants of the Company or the Guarantor, as the case may be, contained herein
and in the Securities or the Guarantees; or
(2) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders of all or any series of Securities (as shall be specified
in such supplemental indenture or indentures and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are being included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company or the Guarantor; or
(3) to add to or change any of the provisions of this Indenture to provide
that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the
70
payment of principal of, any premium or interest on or any Additional Amounts
with respect to Securities, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be exchanged for
Bearer Securities of additional authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided any such
action shall not adversely affect the interests of the Holders of Securities of
any series or any Coupons appertaining thereto in any material respect; or
(4) to establish the form or terms of Securities of any series and any
Coupons appertaining thereto as permitted by Sections 201 and 301 or of the
related Guarantees as permitted by Section 202; or
(5) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 609; or
(6) to cure any ambiguity or to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture which shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding or any Coupons appertaining thereto in
any material respect; or
(7) to add any additional Events of Default with respect to all or any
series of Securities (as shall be specified in such supplemental indenture and
if such additional Events of Default are to be for the benefit of less than all
series of Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(8) to supplement any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the defeasance and discharge of
any series of Securities pursuant to Article Four, provided that any such action
shall not adversely affect the interests of any Holder of a Security of such
series and any Coupons appertaining thereto or any other Security or Coupon in
any material respect; or
(9) to secure the Securities and Guarantees; or
(10) to amend or supplement any provision contained herein or in any
supplemental indenture (which amendment or supplement may apply to one or more
series of Securities or to one or more Securities within any series as specified
in such supplemental indenture or indentures), provided that such amendment or
supplement does not apply to any Outstanding Security issued prior to the date
of such supplemental indenture and entitled to the benefits of such provision or
modify the rights of the Holder of any such Security with respect to such
provision.
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Section 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, the Guarantor, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of the
Securities of such series or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
-------- -------
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of principal or interest on or any Additional Amounts with
respect to, any Security, or any sinking fund or analogous payment in
respect thereof, or reduce the principal amount thereof or the rate (or
modify the calculation of such rate) of interest thereon or any Additional
Amounts with respect thereto, or any premium payable upon the redemption
thereof or otherwise, or change the obligation of the Company to pay
Additional Amounts pursuant to Section 1004, or reduce the amount of the
principal of any Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, adversely
affect the right of repayment at the option of any Holder as contemplated
by Article Fifteen, or change the provisions of Article Ten relating to
Place of Payment for Bearer Securities being located outside the United
States, or the Currency in which the principal of, any premium or interest
on, or any Additional Amounts with respect to any Security or any sinking
or analogous fund payment in respect thereof, is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of repayment at the option of the Holder,
on or after the Repayment Date), or
(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; or
(4) change in any manner adverse in any material respect to the
interests of the Holders of any Outstanding Securities the terms and
conditions of the obligations of
72
the Guarantor in respect of the due and punctual payment of the principal
thereof and any premium or interest thereon or any sinking or analogous
fund payments provided in respect thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which shall have been included expressly and solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
As a condition to executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article Nine or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture and an
Officers' Certificate stating that all conditions precedent to the execution of
such supplemental indenture have been fulfilled. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company and the Guarantor
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee, the Company and the Guarantor, to any such
supplemental indenture may be prepared and executed by the Company, the
Guarantees of the Guarantor may be endorsed thereon and such securities
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
73
Section 906. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Any Premium, Interest and Additional
----------------------------------------------------------
Amounts.
-------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of, any premium
and interest on and any Additional Amounts with respect to the Securities of
each series in accordance with the terms thereof, any Coupons appertaining
thereto and this Indenture. Any interest due on any Bearer Security on or
before the Maturity thereof, and any Additional Amounts payable with respect to
such interest, shall be payable only upon presentation and surrender of the
Coupons appertaining thereto for such interest as they severally mature.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company and the Guarantor shall maintain in each Place of Payment for
any series of Securities, an Office or Agency where Securities of such series,
and Guarantees with respect thereto (but not Bearer Securities, except as
otherwise provided below, unless such Place of Payment is located outside the
United States) may be presented or surrendered for payment, where Securities of
such series may be surrendered for registration of transfer or exchange, where
Registered Securities may be surrendered for conversion, where Bearer Securities
may be surrendered for conversion in the circumstances described below (and not
otherwise) and where notices and demands to or upon the Company and the
Guarantor in respect of the Securities of such series relating thereto and this
Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company shall maintain, subject to any laws or regulations
applicable thereto, an Office or Agency in a Place of Payment and Place of
Conversion for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto, and Guarantees
with respect thereto, may be presented and surrendered for payment or
conversion; provided, however, that if the Securities of such series are listed
-------- -------
on the London Stock Exchange or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company shall maintain a Paying Agent and a Conversion Agent in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of such series are listed on such
exchange. The Company and the Guarantor will give prompt written notice to the
Trustee of the location, and any change in the location, of such Office or
Agency. If at any time the Company or the Guarantor shall fail to maintain any
such required Office or Agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of such series and any Coupons appertaining thereto, and Guarantees
with
74
respect thereto, may be presented and surrendered for payment or conversion at
the place specified for that purpose with respect to such Securities as provided
in or pursuant to this Indenture, and the Company and the Guarantor hereby
appoint the Trustee as their agent to receive all such presentations,
surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no payment
of principal, premium, interest or Additional Amounts with respect to Bearer
Securities (including payments by reason of the conversion thereof) shall be
made at any Office or Agency in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a bank
located in the United States; provided, however, that if amounts owing with
-------- -------
respect to any Bearer Securities shall be payable in Dollars, payment of
principal of, any premium or interest on and any Additional Amounts with respect
to any such Security, or Guarantees with respect thereto, may be made, and any
Bearer Securities may be surrendered for conversion, at the Corporate Trust
Office of the Trustee or any Office or Agency designated by the Company in the
Borough of Manhattan, The City of New York, if (but only if) payment of the full
amount of such principal, premium, interest or Additional Amounts, or surrender
of Bearer Securities for conversion, at all offices outside the United States
maintained for such purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions on the full payment or receipt of such amounts in Dollars as
determined by the Company, or on surrender of any Bearer Securities for
conversion.
The Company and the Guarantor may also from time to time designate one or
more other Offices or Agencies where the Securities of one or more series, and
Guarantees endorsed thereon, may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
-------- -------
that no such designation or rescission shall in any manner relieve the Company
or the Guarantor of its obligation to maintain an Office or Agency in each Place
of Payment and Place of Conversion for Securities of any series for such
purposes. The Company and the Guarantor shall give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other Office or Agency. Unless otherwise provided in or pursuant to
this Indenture, the Company and the Guarantor hereby designate as the Place of
Payment and the Place of Conversion for each series of Securities (other than
those issued as Bearer Securities) and the Guarantees endorsed thereon, the
Borough of Manhattan, The City of New York, and initially appoint the Corporate
Trust Office of the Trustee as the Company's and the Guarantor's Office or
Agency in the Borough of Manhattan, The City of New York for such purpose. The
Company and the Guarantor may subsequently appoint a different Office or Agency
in the Borough of Manhattan, The City of New York for the Securities of any
series, and the Guarantees endorsed thereon. Unless otherwise provided in or
pursuant to this Indenture, the Company and the Guarantor hereby designate as
the Place of Payment and the Place of Conversion for Bearer Securities and the
Guarantees endorsed thereon, to be London, England, and initially appoint the
office of the Trustee in London as the Office or Agency for such purpose and
initially appoint the office of the Trustee in London as its Paying Agent 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,
75
except that Bearer Securities and Coupons may be presented and surrendered for
payment and conversion to the Paying Agent in London at its office in the City
of London, England or other Paying Agent or Conversion Agent outside the United
States, and the Company hereby appoints the Paying Agent in London as its agent
to receive such respective presentations, surrenders, notices and demands.
Section 1003. Money for Securities Payments to be Held in Trust.
-------------------------------------------------
If the Company or the Guarantor, as the case may be, shall at any time act
as its own Paying Agent with respect to any series of Securities, it shall, on
or before each due date of the principal of, any premium or interest on or
Additional Amounts with respect to any of the Securities of such series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in Dollars sufficient to pay the principal or any premium, interest or
Additional Amounts so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and shall promptly notify the
Trustee of its action or failure so to act.
Whenever the Company or the Guarantor, as the case may be, shall have one
or more Paying Agents for any series of Securities, it shall, on or prior to
each due date of the principal of, any premium or interest on or any Additional
Amounts with respect to any Securities of such series, deposit with any Paying
Agent a sum in Dollars sufficient to pay the principal or any premium, interest
or Additional Amounts so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto, and (unless such Paying Agent is the
Trustee) the Company or the Guarantor, as the case may be, will promptly notify
the Trustee of its action or failure so to act.
The Company or the Guarantor, as the case may be, shall cause each Paying
Agent for any series of Securities other than the Trustee to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities
of such series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company or the
Guarantor (or any other obligor upon the Securities of such series) in the
making of any payment of the principal of, any premium or interest on or
any Additional Amounts with respect to the Securities of such series;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(4) indemnify the Trustee for any loss, cost, liability, or expense
caused by any error, act or omission of the Paying Agent.
76
The Company or the Guarantor, as the case may be, may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or by Company Order of the Company or the Guarantor direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company,
the Guarantor or such Paying Agent, such sums to be held by the Trustee upon the
same terms as those upon which such sums were held by the Company, the Guarantor
or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited
with the Trustee or any Paying Agent, or then held by the Company or the
Guarantor, as the case may be, in trust for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to any Security of
any series or any Coupon appertaining thereto and remaining unclaimed for two
years after such principal or any such premium or interest or any such
Additional Amounts shall have become due and payable shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be paid to the Company or the Guarantor, as the case may be, on
Company Request, or (if then held by the Company or the Guarantor) shall be
discharged from such trust; and the Holder of such Security or any Coupon
appertaining thereto, or Guarantees endorsed thereon, shall thereafter, as an
unsecured general creditor, look only to the Company or the Guarantor (pursuant
to the Guarantee) for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
or the Guarantor as trustee thereof, shall thereupon cease; provided, however,
-------- -------
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment for such series or to be mailed to
Holders of Registered Securities of such series, or both, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company or the
Guarantor, as the case may be.
Section 1004. Additional Amounts.
------------------
All payments of principal of, premium, if any, and interest on Securities
of any series to a Holder thereof who is not a United States person, and all
payments on the Guarantees to a Holder thereof who is not a United States person
shall be made without set-off, counterclaim, fees, liabilities or similar
deductions (including payments on redemption 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"). If the Company, the Guarantor,
-----
or any agent of either is required by law or regulation to make any deduction or
withholding for or on account of Taxes, the Company or Guarantor, as the case
may be, shall pay such additional amounts ("Additional Amounts") as shall be
------------------
necessary in order that the net amounts received by the Holders of the
Securities of any series who are not United States persons after such deduction
or withholding shall equal the amount that would have been
77
receivable thereunder in the absence of such deduction or withholding, except
that no such Additional Amounts shall be payable on account of:
(a) any Tax which would not have been so imposed but for (i) the
existence of any present or former connection between such Holder (or between
a fiduciary, settlor, beneficiary, member, shareholder of or possessor of a
power over such Holder, if such Holder is an estate, a trust, a partnership or
a corporation) and the United States or any political subdivision or taxing
authority thereof or therein, including, without limitation, such Holder (or
such fiduciary, settlor, beneficiary, member, shareholder or possessor) being
or having been a citizen or resident of the United States or treated as a
resident thereof, or being or having been engaged in trade or business or
present therein, or having had a permanent establishment therein, (ii) such
Holder's present or former status as a personal holding company, a foreign
personal holding company with respect to the United States, a controlled
foreign corporation, a passive foreign investment company, or a foreign
private foundation or foreign tax exempt entity for United States tax
purposes, or a corporation which accumulates earnings to avoid United States
Federal income tax, or (iii) such holder's status as a bank extending credit
pursuant to a loan agreement entered into in the ordinary course of business;
(b) any Tax which would not have been so imposed but for the
presentation by the Holder of such Security or any Coupon appertaining thereto
for payment on a date more than 15 days after the date on which such payment
became due and payable or the date on which payment thereof is duly provided
for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal property
or similar Tax;
(d) any Tax which would not have been imposed but for the failure to
comply with any certification, identification or other reporting requirements
concerning the nationality, residence, identity or connection with the United
States of the Holder or beneficial owner of such Security or any Coupon
appertaining thereto, if compliance is required by statute or by regulation or
ruling of the United States Treasury Department as a precondition to exemption
from such Tax;
(e) any Tax which is payable otherwise than by deduction or withholding
from payments of principal of, premium, if any, or interest on such Security;
(f) any Tax imposed as a result of a Person's past or present actual or
constructive ownership, including by virtue of the right to convert
Securities, of 10% or more of the total combined voting power of all classes
of stock of the Company entitled to vote;
(g) any Tax required to be withheld by any Paying Agent from any
payment of the principal of, premium, if any, or interest on such Security, if
such payment can be made without such withholding by any other Paying Agent in
Western Europe;
(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
78
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 the
provisions of this paragraph apply in lieu of redeeming the Security pursuant to
such Section 1102. In such event, the Company will pay as Additional Amounts
such amounts as may be necessary so that every net payment made, following the
effective date of such requirements, outside the United States by the Company or
any Paying Agent of principal and premium, if any, due in respect of a Security,
or interest represented by any Coupon, the beneficial owner of which is not a
United States person (but without any requirement that the nationality,
residence or identity of such beneficial owner be disclosed to the Company, any
Paying Agent or any governmental authority), after deduction or withholding for
or on account of such backup withholding tax or similar charge, other than a
backup withholding tax or similar charge which is (a) the result of a
certification, identification or information reporting requirement described in
the first parenthetical clause of such third paragraph of Section 1102, (b)
imposed as a result of the fact that the Company or any Paying Agent has actual
knowledge that the beneficial owner of the Security or such Coupon is within the
category of Persons described in clause (a) of the preceding paragraph or (c)
imposed as a result of presentation of the Security or such Coupon for payment
more than 15 days after the date on which such payment becomes due and payable
or on which payment thereof is duly provided for, whichever occurs later, will
not be less than the amount provided for in the Security or such Coupon to be
then due and payable.
Except as specifically provided in this Indenture, the Company shall
not be required to make any payment with respect to any Taxes.
If the Company, the Guarantor or any successor to either of them under this
Indenture shall be incorporated under the laws of a jurisdiction other than the
United States, the Company or its successor will pay, and the Guarantor or its
successor will jointly and severally guarantee the payment of, and the Company
or the Guarantor shall provide notice to the Trustee of the payment of, such
additional amounts ("Other Additional Amounts") as may be necessary in order
------------------------
that every net payment on each Security, after withholding for or on account of
any present or future tax, assessment or other governmental charge imposed upon
or as a result of such payment by such other jurisdiction (or any political
subdivision or taxing authority thereof or therein), will be not less than the
amount provided for in such Security to be then due and payable; provided,
--------
however, that (i) the Other Additional Amounts payable to a Holder of a Security
-------
will be reduced
79
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.
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.
--------------------------
Each of the Company and the Guarantor will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company and the Guarantor, as
the case may be, an Officers' Certificate, stating as to each signer, that
(1) a review of the activities of the Company or the Guarantor, as the case
may be, during such year and of performance under this Indenture has been made
under his or her supervision; and
(2) to the best of his or her knowledge, based on such review, (a) the
Company or the Guarantor, as the case may be, has fulfilled all its obligations
under this Indenture throughout such year, or, if there has been a material
default in the fulfillment of any such obligation, specifying each such default
known to him or her and the nature and status thereof, and (b) no event has
occurred and is continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him or her and the nature and
status thereof.
80
Section 1006. Corporate Existence.
-------------------
Subject to Article Eight, the Company and the Guarantor will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
------------------------
Redemption of Securities of any series at the option of the Company as
permitted or required in or pursuant to this Indenture or by the terms of such
Securities shall be made in accordance with the terms of this Indenture or such
Securities and (except as otherwise provided herein or pursuant hereto) this
Article Eleven.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of the Securities of any series, the Company shall, at least 75 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
In addition, notwithstanding the above, if as a result of a Tax Law
Change, the Company has or will become obligated to pay to the Holder of any
Security or Coupon 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
81
such Additional Amounts, notwithstanding that the Company shall have made
payments of Additional Amounts specified in Section 1004.
In addition, if the Company determines, based upon an Opinion of Counsel,
that, as a result of a Tax Law Change, any payment made outside the United
States by the Company or any of its Paying Agents of the full amount of
principal, premium, if any, or interest due with respect to any Bearer Security
or Coupon appertaining thereto would be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which requirement is the disclosure to the Company, any Paying Agent
or any governmental authority of the nationality, residence or identity of a
beneficial owner of such Bearer Security or Coupon who is not a United States
person (other than such a requirement (a) which would not be applicable to a
payment made by the Company or any one of its Paying Agents (i) directly to the
beneficial owner or (ii) to any custodian, nominee or other agent of the
beneficial owner, (b) which can be satisfied by the custodian, nominee or other
agent certifying that such beneficial owner is not a United States person,
provided that, in each case referred to in clauses (a) (ii) and (b), payment by
-------- ----
such custodian, nominee or agent to such beneficial owner is not otherwise
subject to any such requirement, or (c) which would not be applicable but for
the fact that such Bearer Security constitutes a "United States real property
interest," as defined in Section 897(c)(1) of the Internal Revenue Code, with
respect to the beneficial owner of such Bearer Security), the Company at its
election will either (x) redeem the Bearer Securities, as a whole but not in
part, upon not less than 20 nor more than 60 days' notice prior to the
Redemption Date, at a Redemption Price equal to 100% of the principal amount
thereof plus interest accrued to the Redemption Date and any Additional Amounts,
or (y) if and so long as the certification, identification or other information
reporting requirement referred to above would be fully satisfied by payment of a
backup withholding tax or similar charge, pay the 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
82
in part, upon not less than 20 nor more than 60 days' notice prior to the
Redemption Date, at a Redemption Price equal to 100% of the principal amount
thereof plus interest accrued to the Redemption Date, and any Additional
Amounts.
Section 1103. Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
If any Securities of any series are to be redeemed in part, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee from the Outstanding Securities of such series
not previously called for redemption, in compliance with the requirements of the
principal national 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.
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Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by the Trustee in the manner provided
in Section 106, not less than 20 nor more than 60 days prior to the Redemption
Date, unless a different period is specified in the Securities to be redeemed.
All such redemption notices (except, in the case of a redemption specified in
the penultimate paragraph of Section 1102) shall be irrevocable. Failure to
give notice by mailing in the manner herein provided to the Holder of any
Registered Securities designated for redemption as a whole or in part, or any
defect in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall identify the Securities to be redeemed and
shall state:
(1) the Redemption Date,
(2) the Redemption Price, and accrued interest, if any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the Holder of such Security will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become due
and payable upon each such Security or portion thereof to be redeemed, and, if
applicable, that interest thereon shall cease to accrue on and after said date,
(6) if applicable, the Conversion Price, the date on which the right to
convert the Securities to be redeemed will terminate and the places where such
Securities, together with all unmatured Coupons and any matured Coupons in
default appertaining thereto, may be surrendered for conversion,
(7) the place or places where such Securities, together (in the case of
Bearer Securities) with all Coupons appertaining thereto, if any, maturing after
the Redemption Date, 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,
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(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).
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
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extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that, except
-------- -------
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section 1002),
and provided, further, that, except as otherwise specified in or pursuant to
-------- -------
this Indenture or the Registered Securities of such series, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing Coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that any
-------- -------
interest or Additional Amounts represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an Office or Agency for such
Security located outside of the United States except as otherwise provided in
Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security and each Security shall remain convertible (if applicable) until the
principal of such Security (or portion thereof, as the case may be) shall have
been paid or duly provided for.
Section 1107. Securities Redeemed in Part.
---------------------------
Any 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, the Guarantees of the Guarantor shall be endorsed on and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new 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
86
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
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
87
Exhibit C stating that the Holder elects to convert such Security or, if less
---------
than the entire principal amount thereof is to be converted, the portion thereof
to be converted. Each Bearer Security surrendered for conversion must be
surrendered together with all Coupons appertaining thereto that mature after the
Conversion Date. If any Bearer Security surrendered for conversion shall not be
accompanied by all such appurtenant Coupons, the surrender of any or all of such
missing Coupons may be waived by the Company, the Guarantor and the Trustee, if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. Matured Coupons not in default
(including Coupons maturing on the Conversion Date) will be payable against
surrender thereof, and matured Coupons previously surrendered and in default
will continue to be payable, notwithstanding the exercise of the right of
conversion by the Holder of the Security to which the Coupon appertains. Accrued
interest from the immediately preceding Interest Payment Date until the
Conversion Date (and Additional Amounts, if any, thereon) will be paid, through
the Paying Agent, in the same manner as regular payments of interest and as
provided in Section 307, within five Business Days after the Conversion Date.
The Company's delivery to the Holder of the fixed number of shares of Common
Stock 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, the Guarantees of the Guarantor
shall be endorsed thereon 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
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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 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.
89
(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 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).
90
(6) For the purpose of any computation under paragraphs (2) and (4)
of this Section 1204, the current market price per share of Common Stock on any
date shall be calculated by the Company and be deemed to be the average of the
daily Closing Prices Per Share for the five consecutive Trading Days selected by
the Company commencing not more than 10 Trading Days before, and ending not
later than, the earlier of the day in question and the day before the "ex date"
with respect to the issuance or distribution requiring such computation. For
purposes of this paragraph, the term "ex date," when used with respect to any
issuance or distribution, means the first date on which the Common Stock trades
regular way in the applicable securities market or on the applicable securities
exchange without the right to receive such issuance or distribution.
(7) No adjustment in the Conversion Price shall be required unless
such adjustment (plus any adjustments not previously made by reason of this
paragraph (7)) would require an increase or decrease of at least one percent in
such Conversion Price; provided, however, that any adjustments which by reason
-------- -------
of this paragraph (7) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Article shall be made to the nearest cent or to the nearest one-thousandth of a
share, as the case may be.
(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.
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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 the Guarantor); or
(c) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding shares of
Common Stock), or of any consolidation or merger to which the Company is a
party and for which approval of the stockholders of the Company is required
pursuant to applicable corporate law, or of the sale or transfer of all or
substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002, and shall
cause to be provided to all Holders in accordance with Section 106, at least 20
days (or 10 days in any case specified in clause (a) or (b) above) prior to the
applicable record 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
92
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.
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
93
by a Holder of the Securities includes stock or other securities and property of
a corporation other than the successor or purchasing corporation, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders
of the Securities as the Board of Directors of the Company shall reasonably
consider necessary. The above provisions of this Section 1211 shall similarly
apply to successive consolidations, mergers, sales or transfers. Notice of the
execution of such a supplemental indenture shall be given by the Company to the
Holder of each Security as provided in Section 106 promptly upon such execution.
Section 1212. Compliance with Governmental Requirements. The Company covenants
-----------------------------------------
that if any shares of Common Stock required to be reserved for purposes of
conversion of Securities hereunder require registration or listing with or
approval of any governmental authority under any Federal or State law, pursuant
to the Securities Act or the Exchange Act , or any national or regional
securities exchange or other trading market on which the Common Stock is listed
at the time of delivery of any Common Stock, before such shares may be issued
upon conversion, the Company will use its best efforts to cause such shares to
be duly registered, listed or approved, as the case may be.
ARTICLE THIRTEEN
SINKING FUNDS
Section 1301. Applicability of Article.
------------------------
The provisions of this Article Thirteen shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise permitted
or required in or pursuant to this Indenture or any Security of such series
issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1302. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
Section 1302. Satisfaction of Sinking Fund Payments With Securities.
-----------------------------------------------------
The Company or the Guarantor may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any series to be made
pursuant to the terms of such Securities (1) deliver Outstanding Securities of
such series (other than any of such Securities previously called for redemption
or any of such Securities in respect of which cash shall have been released to
the Company), together in the case of any Bearer Securities of such series with
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all unmatured Coupons appertaining thereto, and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
-------- ----
Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
1302, the principal amount of Securities of such series to be redeemed in order
to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment, provided, however, that
-------- -------
the Trustee or such Paying Agent shall at the request of the 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.
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ARTICLE FOURTEEN
GUARANTEES
Section 1401. Guarantees.
----------
Except as otherwise contemplated by Section 1403 below and subject to
Article Eighteen, the Guarantor hereby unconditionally guarantees to each Holder
of a Security authenticated and delivered by the Trustee, and to the Trustee on
behalf of such Holder, the due and punctual payment of the principal of and any
premium and interest on and any Additional Amounts, if any, on such Security and
the due and punctual payment of any sinking fund or analogous payments provided
for pursuant to the terms of such Security, when and as the same shall become
due and payable, whether at the Stated Maturity, by declaration of acceleration,
call for redemption, repayment at the option of the Holder or otherwise, in
accordance with the terms of such Security and of this Indenture, and whether or
not such payment is prohibited by the subordination provisions of Article
Seventeen and any and all other amounts owed by the Company to the Trustee under
the terms of this Indenture. The Guarantor further unconditionally guarantees
to the Trustee the Company's obligations under Section 606 herein. In case of
the failure of the Company punctually to make any such payment, the Guarantor
hereby agrees to cause such payment to be made punctually when and as the same
shall become due and payable, whether at the Stated Maturity or by declaration
of acceleration, call for redemption, repayment at the option of the Holder or
otherwise, and whether or not such payment is prohibited by the subordination
provisions of Article Seventeen and as if such payment were made by the Company,
subject to Article Eighteen.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional (subject to Article Eighteen), irrespective of the validity,
regularity or enforceability of such Security or this Indenture, the absence of
any action to enforce the same, any waiver or consent by the Holder of such
Security or by the Trustee with respect to any provisions thereof or of this
Indenture (subject to Article Nine), the obtaining of any judgment against the
Company or any action to enforce the same or any other circumstances which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
The Guarantor hereby waives the benefits of diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest or notice with respect to such Security or the indebtedness evidenced
thereby or with respect to any sinking fund payment required pursuant to the
terms of such Security and all demands whatsoever, and covenants that the
Guarantees will not be discharged in respect of such Security except by complete
performance of the obligations contained in such Guarantee. The Guarantor hereby
agrees that, in the event of a default in payment of principal (or premium, if
any) or interest or Additional Amounts, if any, on such Security, or a default
in any sinking fund or analogous payment referred to therein, legal proceedings
may be instituted by the Trustee on behalf of, or by, the Holder of such
Security, on the terms and conditions set forth in this Indenture, directly
against the Guarantor to enforce the Guarantees without first proceeding against
the Company.
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The Guarantor shall be subrogated to all rights of the Holders of the
Securities of a particular series against the Company in respect of any amounts
paid by the Guarantor on account of such Security pursuant to the provisions of
the Guarantees or this Indenture; provided, however, that the Guarantor shall
-------- -------
not be entitled to enforce or to receive any payments arising out of, or based
upon, such right of subrogation until the principal of (and premium, if any) and
interest and Additional Amounts, if any, on all Securities of such series issued
hereunder shall have been paid in full.
Section 1402. Execution and Delivery of Guarantees.
------------------------------------
The Guarantees to be endorsed on the Securities of each series shall be in
substantially the form of Exhibit A hereto (except that references to premium
---------
and interest need be included only if any premium or interest, respectively, is
provided for in the terms of such series) and any other terms that may be set
forth in the form established pursuant to Section 202 with respect to such
series. The Guarantor hereby agrees to execute the Guarantees, in a form
established pursuant to Section 202, to be endorsed on each Security
authenticated and delivered by the Trustee.
The Guarantees shall be executed on behalf of the Guarantor by its Chairman
of the Board, a Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Guarantees may be manual or facsimile.
Guarantees bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Guarantor shall bind the Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Guarantees or did not
hold such offices at the date of such Guarantees.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor. The Guarantor hereby agrees that its
Guarantee set forth in Section 1401 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any Security.
Section 1403. Guarantees Optional.
-------------------
Notwithstanding anything to the contrary in this Indenture, if so provided
in the terms of any series of Securities, such series of Securities may be
issued without the Guarantees contemplated by this Article Fourteen. In such
case, any and all references to the "Guarantees" or the "Guarantor" (including
the provisions relating thereto) throughout this Indenture shall be inapplicable
to such series.
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ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1501. Applicability Of Article. Repayment of Securities of any
------------------------
series that are convertible into Common Stock pursuant to Article Twelve before
their Stated Maturity at the option of Holders thereof shall be made in
accordance with the terms of such Securities, if any, and (except as otherwise
specified by the terms of such series established pursuant to Section 301) in
accordance with this Article Fifteen.
Section 1502. Repayment Of Securities. Securities of any series subject to
-----------------------
repayment in whole or in part (which shall be in a principal amount hereof which
is U.S. $1,000 or an integral multiple thereof) at the option of the Holders
thereof on any Repayment Date (as defined below) will, unless otherwise provided
in the Company's Board Resolutions or Officers' Certificate establishing such
series, be repaid at a price equal to the principal amount thereof, together
with interest and Additional Amounts, if any (the "Repayment Price"), if a
---------------
Repayment Event shall occur or have occurred. For purposes hereof a "Repayment
---------
Event" shall have occurred if the Common Stock (or other equity securities into
-----
which such series of Securities is then convertible) is neither listed for
trading on a United States national securities exchange, the Nasdaq National
Market nor approved for trading on an established automated over-the-counter
trading market in the United States. The "Repayment Date" with respect to any
--------------
Repayment Event shall be the ninetieth (90th) day after the later of the
Exchange Date or the date a Repayment Event has occurred. The Company covenants
that at or prior to 10:00 a.m., Eastern Time, on the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money in Dollars 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,
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(2) the date by which the repayment right must be exercised,
(3) the Repayment Price,
(4) the Conversion Price then in effect, the date on which the right to
convert the Securities to be repaid will terminate and the place or places where
such Securities, together (in the case of Bearer Securities) with all Coupons
appertaining thereto, if any, maturing after the Repayment Date, may be
surrendered for conversion,
(5) a description of the procedure which a Holder must follow to exercise
a repayment right and the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining thereto, if any,
maturing after the Repayment Date, are to be surrendered for payment and accrued
interest and Additional Amounts, if any, pertaining thereto, and
(6) that, unless otherwise specified in such notice, Bearer Securities of
any series, if any, surrendered for repayment must be accompanied by all Coupons
maturing subsequent to the Repayment Date or the amount of any such missing
Coupon or Coupons will be deducted from any amount due to such Holder, unless
security or indemnity satisfactory to the Company, the Trustee and any Paying
Agent is furnished.
Section 1504. Exercise Of Option. Securities of any series subject to
------------------
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form substantially in the form of Exhibit F, on the reverse of such
---------
Securities. In order for any Security to be repaid at the option of the Holder,
the Trustee must receive at the Place of Payment therefor specified in the terms
of such Security (or at such other place or places of which the Company shall
from time to time notify the Holders of such Securities) not earlier than 60
days nor later than 30 days prior to the Repayment Date (1) the Security so
providing for such repayment together with the "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,
99
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise 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
100
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, the Guarantees of
the Guarantor shall be endorsed thereon 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
Manhattan, The City of New York, or, if Securities of such series are to be
issued as
101
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 provides may be made, given or taken by the
Holders of a specified percentage, which is less
102
than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1605. Determination of Voting Rights; Conduct and Adjournment of
----------------------------------------------------------
Meetings.
--------
(1) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of
the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other
proof.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company, the Guarantor or by Holders of Securities as
provided in Section 1602(2), in which case the Company, the Guarantor or
the Holders of Securities of the series calling the meeting, as 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
103
such series represented at the meeting; and the meeting may be held as so
adjourned without further notice.
Section 1606. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1602 and, if
applicable, Section 1604. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, another to the Guarantor, and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE SEVENTEEN
SUBORDINATION OF SECURITIES
Section 1701. Securities Subordinate to Senior Indebtedness.
---------------------------------------------
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article Seventeen, the indebtedness
represented by the Securities and the payment of the principal of, premium, if
any, and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
Section 1702. Payment Over of Proceeds Upon Dissolution, Etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or its creditors, as such, or to
its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in
104
money or money's worth, before the Holders of the Securities are entitled to
receive any payment on account of principal of, premium, if any, or interest on
the Securities and to that end the holders of Senior Indebtedness shall be
entitled to receive, for application to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or securities,
which may be payable or deliverable in respect of the Securities in any such
case, proceeding, dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this Section
1702, the Trustee or the Holder of any Security shall have received any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, before all Senior Indebtedness is paid in full or
payment thereof provided for, and if such fact shall, at or prior to the time of
such payment or distribution, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event such payment or distribution
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all
Senior Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holder of Senior Indebtedness.
For purposes of this Article only, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment which are subordinated in right of
payment to all Senior Indebtedness which may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article Seventeen.
The issuance and delivery of junior securities upon conversion of
Securities in accordance with Article Twelve shall not be deemed to constitute a
payment or distribution on account of the principal of or premium or interest on
Securities or on account of the purchase or other acquisition of securities.
For the purposes of this Section, the term "junior securities" means Common
-----------------
Stock and any other cash, property or securities into which the Securities are
convertible pursuant to Article Twelve. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall impair,
as among the Company, its creditors other than holders of Senior Indebtedness
and the Holders of the Securities, the right, which is absolute and
unconditional, of the Holder of any Security to convert such Security in
accordance with Article Twelve.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its properties and assets
to another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a dissolution, winding up, liquidation, reorganization, assignment
for the benefit of creditors or marshaling of assets and liabilities of the
Company for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or which acquires by
conveyance or transfer all or substantially all of such properties and assets,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article Eight.
105
Section 1703. No Payment When Senior Indebtedness in Default
----------------------------------------------
Upon the maturity of any Senior Indebtedness of the Company by lapse of
time, acceleration or otherwise, all principal thereof (and premium, if any) and
interest due thereon, including interest thereon accruing after the commencement
of any proceeding of the type referred to in Section 1702 above, and all other
amounts due on or with respect thereto, shall first be paid in full, or such
payment duly provided for in cash, before any payment, directly or indirectly,
is made by the Company on account of the principal of, premium, if any, or
interest and Additional Amounts on the Securities or Coupons. Upon the
happening of an event of default with respect to any Senior Indebtedness of the
Company, as defined therein or in the instrument under which it is outstanding
permitting the holders to accelerate the maturity thereof, then, unless and
until such event of default shall have been cured or waived or shall have ceased
to exist, no payment shall be made by the Company, directly or indirectly, on
account of the principal of, premium, if any, or interest and Additional Amounts
on the Securities or Coupons; provided, however, that nothing in this Section
-------- -------
shall prevent the satisfaction of any sinking fund payment in accordance with
Article Thirteen by delivering and crediting pursuant to Section 1302 Securities
which have been acquired (upon redemption or otherwise) prior to such default in
payment or other default.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section 1703 shall not apply to any payment with
respect to which Section 1702 would be applicable.
Section 1704. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article Seventeen or elsewhere in this Indenture
or in any of the Securities shall prevent (a) the Company, at any time except
during the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company referred to in Section 1702 or under the
conditions described in Section 1703, from making payments at any time of
principal of, premium, if any, or interest on the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of, premium, if any, or interest on
the Securities or the retention of such payment by the Holders if, at the time
of such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article Seventeen.
Section 1705. Subrogation to Rights of Holders of Senior Indebtedness.
-------------------------------------------------------
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such
106
Senior Indebtedness pursuant to the provisions of this Article Seventeen to the
rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of, premium, if any, and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article Seventeen, and no payments
over pursuant to the provisions of this Article Seventeen to the holders of
Senior Indebtedness by Holders of the Securities or the Trustee, shall, as among
the Company, its creditors other than holders of Senior Indebtedness and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
Section 1706. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article Seventeen are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article Seventeen or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional
(and which, subject to the rights under this Article Seventeen of the holders of
Senior Indebtedness, is intended to rank equally with all other general
unsecured obligations of the Company), to pay to the Holders of the Securities
the principal of, premium, if any, and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the Securities
and creditors of the Company other than the holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Seventeen of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
Section 1707. Trustee to Effectuate Subordination.
-----------------------------------
Each holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article Seventeen and appoints
the Trustee his attorney-in-fact for any and all such purposes.
Section 1708. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
107
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article Seventeen or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 1709. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article Seventeen or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Securities,
unless and until the Trustee shall have received written notice thereof from the
Company, the Guarantor or a Senior Lender or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have received
-------- -------
the notice provided for in this Section at least three Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Security), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which may
be received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to
conclusively rely on the delivery to it of a written notice by a Person
representing himself to be a Senior Lender (or a trustee therefor) to establish
that such notice has been given by a Senior Lender (or a trustee therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as holders of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Seventeen, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Seventeen, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
108
Section 1710. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Company referred to in
this Article Seventeen, the Trustee, subject to the provisions of Section 601,
and the Holders of the Securities shall be entitled to conclusively rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Seventeen.
Section 1711. Trustee Not Fiduciary for Holders of Senior Indebtedness.
--------------------------------------------------------
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article Seventeen or
otherwise.
Section 1712. Rights of Trustee as Holder of Senior Indebtedness; Preservation
----------------------------------------------------------------
of Trustee's Rights.
-------------------
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Seventeen with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
Nothing in this Article Seventeen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
Section 1713. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
-------
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article Seventeen in addition to or in place of the Trustee; provided, however,
-------- -------
that Section 1712 shall not apply to the Company or any Affiliate of the Company
if it or such Affiliate acts as Paying Agent.
109
ARTICLE EIGHTEEN
SUBORDINATION OF GUARANTEES
Section 1801. Guarantees Subordinate to Senior Guarantor Indebtedness.
-------------------------------------------------------
The Guarantor covenants and agrees, and each Holder of a Security and the
related Guarantee, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article
Eighteen, the Guarantees in respect of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Guarantor Indebtedness.
Section 1802. Payment Over of Proceeds Upon Dissolution, Etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Guarantor or its creditors, as such, or to
its assets, or (b) any liquidation, dissolution or other winding up of the
Guarantor, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit or creditors or
any other marshaling of assets and liabilities of the Guarantor, then and in any
such event the holders of Senior Guarantor Indebtedness shall be entitled to
receive payment in full of all amounts due or to become due on or in respect of
all Senior Guarantor Indebtedness, or provision shall be made for such payment
in money or money's worth, before the Holders of the Guarantees are entitled to
receive any payment under the Guarantees on account of principal on, premium, if
any, or interest on the Securities and to that end the holders of Senior
Guarantor Indebtedness shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether
in cash, property or securities, which may be payable or deliverable in respect
of the Guarantees in any such case, proceeding, dissolution, liquidation or
other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security in respect of the related
Guarantee shall have received any payment or distribution of assets of the
Guarantor of any kind or character, whether in cash, property or securities,
before all Senior Guarantor Indebtedness is paid in full or payment thereof
provided for, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Guarantor for application to the payment of all
Senior Guarantor Indebtedness remaining unpaid, to the extent necessary to pay
all Senior Guarantor Indebtedness in full, after giving effect to any concurrent
payment or distribution to or for the holder of Senior Guarantor Indebtedness.
For purposes of this Article Eighteen only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Guarantor as
reorganized or readjusted, or securities of the Guarantor or any other
corporation provided for by a plan of reorganization or
110
readjustment, which are subordinated in right of payment to all Senior Guarantor
Indebtedness which may at the time be outstanding to substantially the same
extent as, or to a greater extent than, the Guarantees are so subordinated as
provided in this Article Eighteen. The consolidation of the Guarantor with, or
the merger of the Guarantor into, another Person or the liquidation or
dissolution of the Guarantor following the conveyance or transfer of all or
substantially all of its properties and assets to another Person upon the terms
and conditions set forth in Article Eight shall not be deemed a dissolution,
winding up, liquidation, reorganization, assignment for the benefit of creditors
or marshaling of assets and liabilities of the Guarantor for the purposes of
this Section if the Person formed by such consolidation or into which the
Guarantor is merged or which acquires by conveyance or transfer all or
substantially all of such properties and assets , as the case may be, shall, as
a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article Eight.
Section 1803. No Payment When Senior Guarantor Indebtedness in Default.
--------------------------------------------------------
Upon the maturity of any Senior Guarantor Indebtedness by lapse of time,
acceleration or otherwise, all principal thereof (and premium, if any) and
interest due thereon, including interest thereon accruing after the commencement
of any proceeding of the type referred to in Section 1802 above, and all other
amounts due on or with respect thereto, shall first be paid in full, or such
payment duly provided for in cash, before any payment, directly or indirectly,
is made by the Guarantor, directly or indirectly, in respect of the Guarantees
on account of the principal of, premium, if any, or interest and Additional
Amounts on the Securities or Coupons. Upon the happening of an event of default
with respect to any Senior Guarantor Indebtedness, as defined therein or in the
instrument under which it is outstanding permitting the holders to accelerate
the maturity thereof, then, unless and until such event of default shall have
been cured or waived or shall have ceased to exist, no payment shall be made by
the Guarantor, directly or indirectly, in respect of the Guarantees on account
of the principal of, premium, if any, or interest and Additional Amounts on the
Securities or Coupons.
In the event that, notwithstanding the foregoing, the Guarantor shall make
any payment to the Trustee or a Holder with respect to the Guarantee of any
Security prohibited by the foregoing provisions of this Section, and if such
fact shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, the Holder of the Security to which such
Guarantee relates, then and in such event such payment shall be paid over and
delivered forthwith to the Guarantor.
The provisions of this Section 1803 shall not apply to any payment with
respect to which Section 1802 would be applicable.
Section 1804. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article Eighteen or elsewhere in this Indenture
or in any of the Securities or the Guarantees shall prevent (a) the Guarantor,
at any time except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of the Guarantor referred to in
Section 1802 or under the conditions described in Section 1803, from making
payments at any
111
time on the Guarantees on account of principal of, premium, if any, or interest
on the Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on the Guarantees on account of the
principal of, premium, if any, or interest on the Securities or the retention of
such payment by the Holders if, at the time of such application by the Trustee,
it did not have knowledge that such payment would have been prohibited by the
provisions of this Article Eighteen.
Section 1805. Subrogation to Rights of Holders of Senior Guarantor
----------------------------------------------------
Indebtedness.
------------
Subject to the payment in full of all Senior Guarantor Indebtedness, the
Holders of the Securities which are entitled to the benefits of the Guarantee
shall be subrogated to the extent of the payments or distributions made to the
holders of such Senior Guarantor Indebtedness pursuant to the provisions of this
Article Eighteen to the rights of the holders of such Senior Guarantor
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Guarantor Indebtedness until the principal
of, premium, if any, and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Guarantor Indebtedness of any cash, property or securities to which the
Holders of any Security entitled to the benefits of a Guarantee or the Trustee
would be entitled except for the provisions of this Article Eighteen, and no
payments over pursuant to the provisions of this Article Eighteen to the holders
of Senior Guarantor Indebtedness by Holders of any Security entitled to the
benefits of a Guarantee or the Trustee, shall, as among the Guarantor, its
creditors other than holders of Senior Guarantor Indebtedness and the Holders of
any Security entitled to the benefits of a Guarantee, be deemed to be a payment
or distribution by the Guarantor to or on account of the Senior Guarantor
Indebtedness.
Section 1806. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article Eighteen are and are intended solely for the
purpose of defining the relative rights of the Holders of any Security entitled
to the benefits of a Guarantee on the one hand and the holders of Senior
Guarantor Indebtedness on the other hand. Nothing contained in this Article
Eighteen or elsewhere in this Indenture or in the Guarantees or the Securities
is intended to or shall (a) impair, as among the Guarantor, its creditors other
than holders of Senior Guarantor Indebtedness and the Holders of any Security
entitled to the benefits of a Guarantee, the obligation of the Guarantor, which
is absolute and unconditional (and which, subject to the rights under this
Article Eighteen of the holders of Senior Guarantor Indebtedness, is intended to
rank equally with all other general obligations of the Guarantor), to pay to the
Holders of any Security entitled to the benefits of a Guarantee on account of
the principal of, premium, if any, and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Guarantor of the Holders of any Security
entitled to the benefits of a Guarantee and creditors of the Guarantor other
than the holders of Senior Guarantor Indebtedness; or (c) prevent the Trustee or
the Holder of any Security entitled to the benefits of a Guarantee from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article Eighteen of
the holders of Senior Guarantor Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
112
Section 1807. Trustee to Effectuate Subordination.
-----------------------------------
Each holder of a Guarantee by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article Eighteen and appoints
the Trustee his attorney-in-fact for any and all such purposes.
Section 1808. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Guarantor
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Guarantor or by any act or failure to act, in good faith, by any such
holder, or by any non-compliance by the Guarantor with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Guarantor Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of any Security
entitled to the benefits of a Guarantee, without incurring responsibility to the
Holders of any Security entitled to the benefits of a Guarantee and without
impairing or releasing the subordination provided in this Article Eighteen or
the obligations hereunder of the Holders of any Security entitled to the
benefits of a Guarantee to the holders of Senior Guarantor Indebtedness, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Guarantor
Indebtedness, or otherwise amend or supplement in any manner Senior Guarantor
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Guarantor Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Guarantor Indebtedness; (iii) release any Person liable in any manner for the
collection of Senior Guarantor Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Guarantor and any other Person.
Section 1809. Notice to Trustee.
-----------------
The Guarantor shall give prompt written notice to the Trustee of any fact
known to the Guarantor which would prohibit the making of any payment to or by
the Trustee in respect of the Guarantees. Notwithstanding the provisions of
this Article Eighteen or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Guarantees, unless and until the Trustee shall have received written notice
thereof from the Guarantor, the Company or a holder of Senior Guarantor
Indebtedness or from any trustee therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 601, shall be
entitled in all respects to assume that no such facts exist; provided, however,
-------- -------
that if the Trustee shall not have received the notice provided for in this
Section at least three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment under the Guarantees on account of the principal of,
premium, if any, or interest on any Security), then, anything herein
113
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to
conclusively rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Guarantor Indebtedness (or a
trustee therefor) to establish that such notice has been given by a holder of
Senior Guarantor Indebtedness (or a trustee therefor). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Guarantor Indebtedness to
participate in any payment or distribution pursuant to this Article Eighteen,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Guarantor Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Eighteen, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section 1810. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Guarantor referred to in
this Article Eighteen, the Trustee, subject to the provisions of Section 601,
and the Holders of any Security entitled to the benefits of a Guarantee shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of any Security entitled to the benefits of a Guarantee, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Guarantor Indebtedness and other
indebtedness of the Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Eighteen.
Section 1811. Trustee Not Fiduciary for Holders of Senior Guarantor
-----------------------------------------------------
Indebtedness.
------------
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Guarantor Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Guarantees
or to the Guarantor or to any other Person cash, property or securities to which
any holders of Senior Guarantor Indebtedness shall be entitled by virtue of this
Article Eighteen or otherwise.
Section 1812. Rights of Trustee as Holder of Senior Guarantor Indebtedness;
-------------------------------------------------------------
Preservation of Trustee's Rights.
--------------- ----------------
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Eighteen with respect to any Senior Guarantor
Indebtedness which may at any time be
114
held by it, to the same extent as any other holder of Senior Guarantor
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article Eighteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
Section 1813. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
-------
used in this Article Eighteen shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article Eighteen in addition to or in place of the Trustee;
provided, however, that Section 1812 shall not apply to the Company or any
-------- -------
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
[Remainder of page intentionally left blank]
115
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
THERMO INSTRUMENT SYSTEMS INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
(SEAL)
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________
Secretary
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 15th day of January, 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 Instrument Systems Inc., a Delaware corporation, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said Corporation; that the seal affixed to said instrument
is such Corporation's seal; that it was so affixed by authority of the Board of
Directors of said Corporation; and that he signed his name thereto by like
authority.
▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________________
Notary Public
Comm. Exp. Oct. 16, 2003
[NOTARIAL SEAL]
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ )
) : SS.:
COUNTY OF MIDDLESEX )
On the 15th day of January, 1998, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
a 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.
▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________________
Notary Public
Comm. Exp. Oct. 16, 2003
[NOTARIAL SEAL]
STATE OF )
) : SS.:
COUNTY OF )
On the 15th day of January, 1998, before me personally came
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say
that he is a Assist. VP of Bankers Trust Company, a New York banking
corporation, one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said Corporation; that the seal affixed to
said instrument is such Corporation's seal; that it was so affixed by authority
of the Board of Directors of said Corporation; and that he signed his name
thereto by like authority.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________
Notary Public
[NOTARIAL SEAL]
118
EXHIBIT A
---------
GUARANTEE
For value received, Thermo Electron Corporation, a corporation organized
under the laws of the State of Delaware (herein called the "Guarantor," which
---------
term includes any successor corporation under the indenture referred to in the
Security upon which this Guarantee is endorsed), hereby unconditionally
guarantees to the Holder of the Security upon which this Guarantee is endorsed
and to the Trustee on behalf of the Trustee and such Holder the due and punctual
payment of the principal of, premium, if any, and interest and Additional
Amounts, if any, on such Security, any other amount due and payable pursuant to
the terms of the Indenture and the due and punctual payment of the sinking fund
or analogous payments referred to therein if any, when and as the same shall
become due and payable, whether at the stated Maturity, by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise, according to the terms hereof and of the Indenture. In case of the
failure of Thermo Instrument Systems Inc., a corporation organized under the
laws of Delaware (herein called the "Company," which term includes any successor
-------
corporation under such Indenture), punctually to make any such payment of
principal, premium, if any, or interest or Additional Amounts, if any, the
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, repayment at the option of the
Holder or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as if
it were principal debtor and not merely surety, and shall be absolute and
unconditional (except as to the specific subordination provisions contained in
Article Eighteen of the Indenture), irrespective of, and shall be unaffected by,
any invalidity, subordination, irregularity or unenforceability of such Security
or such Indenture, any failure to enforce the provisions of such Security or
such Indenture, or any waiver, modification or indulgence granted to the Company
with respect thereto, by the Holder of such Security or the Trustee or any other
circumstance which may otherwise constitute a legal or equitable discharge of a
surety or guarantor. The Guarantor hereby waives the benefits of diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such
Security or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged except by strict and
complete performance of the obligations contained in such Security and this
Guarantee. The Guarantor hereby agrees that, in the event of a default in
payment of principal of, premium, if any, and interest, and Additional Amounts,
if any, on such Security, or default in any sinking fund or analogous payment
referred to therein, legal proceedings may be instituted by the Trustee on
behalf of, or by, the Holder of such Security, on the terms and conditions set
forth in the indenture, directly against the Guarantor to enforce this Guarantee
without first proceeding against the Company.
The Guarantor shall be subrogated to all rights of the Holder of such
Security and the Trustee against the Company in respect of any amounts paid to
such Holder by the Guarantor on account of such Security pursuant to the
provisions of this Guarantee or the Indenture; provided,
--------
A-1
however, that the Guarantor shall not be entitled to enforce, or to receive any
-------
payments arising out of or based upon, such right of subrogation until the
principal of, premium, if any, and interest and Additional Amounts, if any, on
all Securities issued under such Indenture shall have been paid in full.
Claims under this Guarantee are, to the extent provided in the Indenture,
subject in right of payment to the prior payment in full of all Senior Guarantor
Indebtedness, and this Guarantee is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of a Security upon which this
Guarantee is endorsed, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided and (c) appoints the Trustee his, her or its attorney-in-fact for
any and all such purposes.
No reference herein to such Indenture and no provision of this Guarantee or
of such Indenture shall alter or impair the guarantee of the Guarantor, which is
absolute and unconditional (except as to the specific subordination provisions
contained in Article Eighteen of the Indenture), of the due and punctual payment
of principal, premium (if any), and interest and Additional Amounts, if any, on
the Security upon which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication of the Security upon which this Guarantee is
endorsed shall have been manually executed by or on behalf of the Trustee under
such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall
have the meanings assigned to them in such Indenture.
This Guarantee shall be deemed to be a contract made under the laws of the
Commonwealth of Massachusetts, and for all purposes shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed under its corporate seal and dated the date on the face hereof.
THERMO ELECTRON CORPORATION
Attest:______________________________ By: ________________________________
Title: _____________________________
A-2
EXHIBIT B
---------
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
NAME OF TRUSTEE,
as Trustee
*Dated:
By:_________________________________
Authorized Officer
____________________________________
* For Registered Securities Only
B-1
EXHIBIT C
---------
CONVERSION NOTICE
(a) For Bearer Securities:
The undersigned Holder of this Security hereby irrevocably exercises the
option to convert this Security, or any portion of the principal amount hereof
(which is an integral multiple of U.S. $1,000 below designated) into shares of
Common Stock in accordance with the terms of the Indenture referred to in this
Security and directs that such shares, together with a check in payment for any
fractional share and any securities representing any unconverted principal
amount hereof, be delivered to the undersigned unless a different name has been
indicated below. The address for payment of any such check must be outside the
United States. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Dated: __________________ ________________________________
Signature
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 of holder
address:
_____________________________________ ____________________________________
Name Name
_____________________________________ ____________________________________
Address Address
_____________________________________ ____________________________________
_____________________________________ ____________________________________
_____________________________________ ____________________________________
Social Security or other Taxpayer Social Security or other Taxpayer
Identification Number, if any Identification Number, if any
C-1
Name and Address (outside the United States) If only a portion of the Securities is to be
to where any check referred to in the first converted, please indicate:
paragraph of this Conversion Notice should
be mailed: 1. Principal Amount to be converted:
U.S. $___________________
_______________________________ 2. Principal amount and denomination of
Name Bearer Securities representing unconverted
principal amount to be issued:
_______________________________
Address
Amount: U.S.$_________________
Denominations:
U.S.$__________
(any integral multiple of U.S. $1,000)
C-2
(b) For Registered Securities:
The undersigned Holder of this Security hereby irrevocably exercises the
option to convert this Security, or any portion of the principal amount hereof
(which is an integral multiple of U.S. $1,000 below designated) into shares of
Common Stock in accordance with the terms of the Indenture referred to in this
Security, and directs that such shares, together with a check in payment for any
fractional share and any Securities representing any unconverted principal
amount hereof, be delivered to and be registered in the name of the undersigned
unless a different name has been indicated below. If shares 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
C-3
If shares or Registered Securities are to be If only a portion of the Securities is to be converted, please
registered in the name of a person other than indicate:
the Holder, please print such Person's name and address: 1. Principal amount to be converted:
U.S. $___________________
_______________________________________
Name
2. Principal amount and denomination of Registered Securities
representing unconverted principal amount to be issued.
_______________________________________
Address Amount: U.S.$_________________
_______________________________________ Denominations:
Social security or other Taxpayer Identification U.S.$__________
Number, if any (any integral multiple of U.S. $1,000)
C-4
EXHIBIT D
---------
Form of Certificate of Beneficial Ownership for
Bearer Securities to be Provided to the
Euroclear Operator or to Cedel Bank, societe anonyme
CERTIFICATION
-------------
U.S. $____________
THERMO INSTRUMENT SYSTEMS INC.
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof and except as set forth
below, $___________ aggregate principal amount of the above-mentioned Securities
held by you for our account are owned or, if this certificate is being delivered
in connection with a payment of interest, were owned, by or on behalf of, (a) a
person (other than a financial institution for purposes of resale during the
restricted period) who is not a United States person; or (b) a United States
person (other than a financial institution for purposes of resale during the
restricted period) who is (i) a foreign branch of a United States financial
institution or (ii) a United States person acquiring such Securities through the
foreign branch of a United States financial institution and who for purposes of
this certification holds such Securities through such financial institution on
the date hereof, and, in the case of either (i) or (ii), such United States
financial institution has agreed, for the benefit of the Company, to comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as from time to time amended, and the regulations
thereunder; or (c) a financial institution for purposes of resale during the
restricted period and such financial institution has not acquired such
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions; and the
undersigned has obtained a similar certificate from its member organizations on
which this certificate is based; provided, however, that if the undersigned has
actual knowledge that the information contained in such a certificate is false
(and, absent documentary evidence that the beneficial owner of such Security is
not a United States person, it will be deemed to have actual knowledge that such
certificate is false if it has a United States address for such beneficial
owner, other than a financial institution described above), the undersigned will
not deliver a Security in temporary or definitive bearer form to the person who
signed such certificate notwithstanding the delivery of such certificate to the
undersigned.
D-1
No. of Certificates Amount
$1,000 Denomination ________________ = $________________
$10,000 Denomination ________________ = $________________
[Other Authorized ________________ = $________________
Denomination]
Total Requested ________________ = $________________/*/
As used herein, (i) "United States person" means a citizen or resident of
the United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States, an estate the income of
which is subject to United States Federal income taxation regardless of its
source, any trust if a court within the United States is able to exercise
primary supervision of the administration thereof and one or more United States
fiduciaries have the authority to control all substantial decisions thereof, and
any other person deemed a "United States person" or a "U.S. person" under the
Internal Revenue Code of 1986, as amended, (ii) "United States" means the United
States of America (including the States and the District of Columbia) and its
territories and possessions, including Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands, (iii)
"restricted period" means the period described in Section 1.163-5(c)(2)(i)(D)(7)
of the United States Treasury Regulations, and (iv) "financial institution"
means the persons described in Section 1. 165-12(c)(1)(v) of the United States
Treasury Regulations.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the Securities held
by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to U.S.$_______________ of
such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of Definitive
Securities cannot be made until we do so certify.
__________________________
/*/ Must equal the amount stated in the first paragraph of this certificate.
D-2
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interested party in such proceedings.
Dated: ___________________, ____/*//*/
[Name]
By:_________________________
Signature
As, or as agent for, the
beneficial owner[s] of the
Securities to which this
certificate relates.
______________________________
/*//*/ Not earlier than 15 days prior to the earlier of the date that definitive
Bearer Security is delivered and the Exchange Date.
D-3
EXHIBIT E
---------
Form of Certificate to be Given by
the Euroclear Operator and Cedel Bank, societe anonyme
CERTIFICATION
-------------
U.S. $
THERMO INSTRUMENT SYSTEMS INC.
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or electronic transmission from member organizations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below or to interest payable on an interest payment date (our
"Member Organizations"), substantially to the effect set forth in the Indenture
relating to the above-captioned Securities, as of the date hereof, U.S.
$_______________ aggregate principal amount of the above-captioned Securities is
owned by persons that are not citizens or residents of the United States, United
States domestic partnerships, United States domestic corporations, any estate
the income of which is subject to United States Federal income taxation
regardless of its source, any trust if a court within the United States is able
to exercise primary supervision of the administration thereof and one or more
United States fiduciaries have the authority to control all substantial
decisions thereof, or any other person deemed a "United States person" or a
"U.S. person" under the Internal Revenue Code of 1986, as amended and the
regulations thereunder ("United States persons").
The following denominations of Bearer Securities are requested:
No. of Certificates Amount
$1,000 Denomination ________________ = $________________
$10,000 Denomination ________________ = $________________
[Other Authorized ________________ = $________________
Denomination]
Total Requested ________________ = $________________/*/
We further certify (i) that we are not making available herewith for
exchange any portion of the temporary global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organization with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date
__________________________
/*/ Must equal the amount stated in the first paragraph of this certificate.
E-1
hereof. We further certify that interest payable on the interest payment dates
on _________ and _________ will be paid with respect to U.S. $_____________
principal amount of the Securities with respect to which we have received from
Member Organizations certificates substantially in the form set out in Exhibit D
to the Indenture relating to the Securities that the Securities (a) are owned by
a person (other than a financial institution for purposes of resale during the
restricted period) who is not a United States person; (b) are owned by a United
States person (other than a financial institution for purposes of resale during
the restricted period) who is (i) a foreign branch of a United States financial
institution or (ii) a United States person who acquired such Securities through
the foreign branch of a United States financial institution and who for purposes
of this certification holds such Securities through such financial institution
on the date hereof and, in either case, such United States financial institution
has agreed, for the benefit of the Company, to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as from time to time amended, and the regulations thereunder; or (c) are
owned by a financial institution for purposes of resale during the restricted
period and such financial institution has certified that it has not acquired
such Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
To the extent that we have knowledge that any of such certificates from a
Member Organization is false and to the extent that we have not received with
respect to any Securities such certificates from Member Organization, we are not
requesting that payment be made for interest with respect thereto.
We further certify that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organization with respect to any interest payment
on any portion of the principal amount of the Securities are no longer true and
cannot be relied upon as of the date hereof. We further certify that under the
rules of the undersigned organization, each Member Organization has agreed that
any electronic certification shall have the effect of a signed certification and
that all certifications shall be retained for at least four calendar years
following the year in which the certifications are received in compliance with
the rules set forth under Treas. Reg. 1.163-5(c)(2)(i)(D)(3)(i).
We undertake that any interest received by us and not paid as provided
above shall be returned to the Trustee for the above-captioned Securities
immediately prior to the expiration of two years after such interest payment
date in order to be repaid by such Trustee to the above issuer at the end of two
years after such interest payment date.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
E-2
As used herein, "United States" means the United States of America
(including the states thereof and the District of Columbia), its territories and
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.
E-3
EXHIBIT F
---------
OPTION TO ELECT REPAYMENT
UPON A REPAYMENT EVENT
To: Thermo Instrument Systems Inc.
The undersigned owner of this Security hereby acknowledges receipt of a
notice from Thermo Instrument Systems Inc. (the "Company") as to the occurrence
of a Repayment Event with respect to the Common Stock of the Company and
requests and instructs the Company to repay the entire principal amount of this
Security, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, in accordance with the terms of the Indenture
referred to in this Security at the Repayment Price (or the relevant percentage
thereof), together with accrued interest to such date (except if the Repayment
Date shall be an Interest Payment Date), to the holder hereof.
Dated: ________________________
________________________________
Signature*(s)
Name: __________________________
Address:_________________________
_________________________
[* Signature Guarantee Required]
Principal amount to be repaid
(if less than all):
$__________
NOTICE: If this Security is issued
in registered form, the above
signatures of the holder(s) hereof
must correspond with the name as it appears
in the Security in every particular without
alteration or enlargement or any
change whatever.
__________________
Social Security or Other
Taxpayer Identification Number
F-1