NOKIA CORPORATION, as Issuer AND LAW DEBENTURE TRUST COMPANY OF NEW YORK, as Trustee INDENTURE Dated as of [ ], 2009
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Exhibit 4.1
NOKIA CORPORATION,
as Issuer
as Issuer
AND
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as Trustee
as Trustee
Dated as
of [ ], 2009
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THIS
INDENTURE, dated as of [ ], 2009 between Nokia Corporation, a corporation
organized under the laws of the Republic of Finland (the “Issuer”) and Law Debenture Trust Company
of New York, as trustee (the “Trustee”),
W I T N E S S E T H:
WHEREAS, the Issuer may issue from time to time in one or more series its unsecured
debentures, notes or other evidences of indebtedness (the “Securities”) represented by one or more
Global Securities represented by definitive Securities in registered form without coupons for
payments, up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture and to provide, among other things, for the
authentication, delivery and administration thereof, the Issuer has duly authorized the execution
and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according
to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the Holders thereof,
the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective Holders from time to time of the Securities as follows:
ARTICLE 1
Definitions
Definitions
Section 1.01. Certain Terms Defined. The following terms (except as otherwise expressly
provided or unless the context otherwise clearly requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective meanings specified in this Section.
All other terms used in this Indenture that are defined in the Trust Indenture Act or the
definitions of which in the Securities Act are referred to in the Trust Indenture Act, including
terms defined therein by reference to the Securities Act (except as herein otherwise expressly
provided or unless the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted accounting principles, and the term
“generally accepted accounting principles” means such accounting principles as are applicable to
the Person in question and generally accepted at the time of any computation. The words “herein”,
“hereof” and “hereunder” and other words
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of similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular.
“Agent Member” means a member of, or participant in, a Depository.
“Board of Directors” when used with reference to the Issuer, means either the Board of
Directors or any committee or member of such Board duly authorized to act hereunder of the Issuer.
“Board Resolution”, when used with reference to the Issuer, means a copy of one or more
resolutions, certified by the Secretary to the Board of Directors or the General Counsel or
Assistant General Counsel of the Issuer, to have been duly adopted by the Board of Directors of the
Issuer and to be in full force and effect, and delivered to the Trustee.
“Business Day” means, with respect to any Security, a day other than a Saturday or Sunday that
(a) in the city (or in any of the cities, if more than one) in which amounts are payable, as
specified in the form of such Security, is not a day on which banking institutions are authorized
by law or regulation to close and (b) if the Security is denominated in a currency other than U.S.
dollars (i) is not a day on which banking institutions are required by law, regulation or executive
order to close in the financial center or centers (where applicable) of the country issuing the
currency and (ii) is a day on which banking institutions in such financial center or centers (where
applicable) are carrying out transactions in such currency.
“Commission” means the U.S. Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or if at any time after the execution and delivery of
this Indenture such Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
“Company Order” means a written statement, request or order signed in the name of the Issuer
by any director or any other Person duly authorized thereto by Board Resolution.
“Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be principally administered, which office is, at the
date as of which this Indenture is dated, located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such Corporate Trust Office as set forth in any supplemental indenture.
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“Depository” means, with respect to Securities issuable or issued in whole or in part in the
form of one or more Global Securities, the Person designated as Depository by the Issuer pursuant
to Section 2.03 hereof which must be a clearing agency registered under the Exchange Act (or a
successor Depository), and if at any time there is more than one such Person, “Depository” as used
with respect to the Securities shall mean the respective Depository with respect to particular
Securities.
“Event of Default” means any event or condition specified pursuant to Section 4.01.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated by the Commission thereunder.
“Global Security” means a global certificate evidencing all or part of a series of Securities,
authenticated and delivered to the Depository and registered in the name of the Depository or its
nominee.
“Government Obligations” means securities that are (i) direct obligations of the United States
of America or any other government of a sovereign state for the payment of which its full faith and
credit is pledged or (ii) obligations of an entity controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such other government the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the United States of
America or such other government, as the case may be, which, in either case under clauses (i) or
(ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank or trust company as custodian with respect to any such
government obligation or specific payment of interest on or principal of any such government
obligation held by such custodian for the account of the holder of a depositary receipt, provided
that (except as required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount received by the custodian
in respect of the government obligation or the specific payment of interest on or principal of the
government obligation evidenced by such depositary receipt.
“Holder”, “Holder of Securities”, “Securityholder” or other similar terms mean the registered
holder of any Security.
“Indenture” means this instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or both, including, for all purposes
of this instrument, any supplemental or amended indenture, the provisions of the Trust Indenture
Act that are deemed to be a part of, and govern this instrument, and any supplemental or
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amended indenture. The term “Indenture” shall also include the forms and terms of particular
series of Securities established as contemplated hereunder.
“interest” means, when used with respect to non-interest bearing Securities, interest payable
after maturity.
“Issuer” means Nokia Corporation, a corporation organized under the laws of the Republic of
Finland and, subject to the terms provided in any supplemental indenture, its successors and
assigns.
“Officer’s Certificate” means a certificate delivered by the Issuer to the Trustee and signed
by the Chief Financial Officer or any other person authorized to sign by the Board of Directors.
Each such certificate shall comply with Section 314 of the Trust Indenture Act and include the
statements provided for in Section 10.05.
“Opinion of Counsel” means an opinion in writing signed by legal counsel who may be an
employee of or counsel to the Issuer and who shall be reasonably satisfactory to the Trustee. Each
such opinion shall comply with Section 314 of the Trust Indenture Act and include the statements
provided for in Section 10.05 if and to the extent required hereby.
“Original Issue Date” of any Security (or portion thereof) means the earlier of (a) the date
of such Security or (b) the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or substitution.
“Original Issue Discount Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 4.01.
“Outstanding”, when used with reference to Securities, shall, subject to the provisions of
Section 6.04, mean, as of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer
for the Holders of such Securities (if the Issuer shall act as its own paying agent), provided that
if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice
of such
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redemption shall have been given as herein provided, or provision reasonably satisfactory to
the Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have been authenticated and
delivered, or which shall have been paid, pursuant to the terms of Section 2.04 (except with
respect to any such Security as to which proof satisfactory to the Trustee is presented that such
Security is held by a person in whose hands such Security is a legal, valid and binding obligation
of the Issuer).
In determining whether the Holders of the requisite principal amount of Outstanding Securities
of any or all series have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, (i) the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to Section 4.01 and (ii) the principal amount of a security denominated
in one or more foreign currencies or currency units shall be the U.S. dollar equivalent determined
in the manner provided or contemplated by Article 1 on the date of original issuance of such
Security of the principal amount (or, in the case of an Original Issue Discount Security, the U.S.
dollar equivalent on the date of original issuance of such Security of the amount determined as
provided in (i) above) of such Security.
“Person” means any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
“principal” whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include “and premium, if any”.
“Responsible Officer” means, with respect to the Trustee and any agent, any officer assigned
to the corporate trust division of the Trustee (or any successor thereto), including any Vice
President, Assistant Vice President, Trust Officer, any trust officer or any other officer of the
Trustee customarily performing functions similar to those performed by any of the above designated
officers, in each case having direct responsibility for the administration of this Indenture.
“Security” or “Securities” has the meaning stated in the first recital of this Indenture, or,
as the case may be, Securities that have been authenticated and delivered under this Indenture.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.
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“Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject
to the provisions of Article Five, shall also include any successor trustee.
“Trust Indenture Act” (except as otherwise provided in Sections 7.01 and 7.02) means the U.S.
Trust Indenture Act as in force at the date as of which this Indenture was originally executed;
provided, however, that if the Trust Indenture Act is amended after such date, “Trust Indenture
Act” means, to the extent required by any such amendment, the U.S. Trust Indenture Act of 1939, as
so amended.
“Yield to Maturity” means the yield to maturity on any series of Original Issue Discount
Securities, calculated at the time of issuance of such series, or, if applicable, at the most
recent redetermination of interest on such series, and calculated in accordance with either the
constant interest method or such other accepted financial practice as is specified in the terms of
such series established pursuant to Section 2.03.
ARTICLE 2
Securities
Securities
Section 2.01. Forms Generally. The Securities of each series shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or pursuant to a Board
Resolution (and set forth in such Board Resolution or, to the extent established pursuant to
(rather than in) such Board Resolution, in an Officer’s Certificate detailing such establishment),
or in one or more indentures supplemental hereto, in each case with such insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
The definitive Securities shall be printed as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
The terms
and provisions contained in the Securities will constitute, and are
hereby expressly made, a part of this Indenture and the Issuer and
the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Security conflicts with
the express provisions of this Indenture, the provisions of this
Indenture shall govern and be controlling.
Section 2.02. Form of Certificate of Authentication. The certificate of authentication
executed by the Trustee or an authentication agent on its behalf on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and referred to in the
within-mentioned Indenture.
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| [ ], as [Trustee/authentication agent] |
||||
| By | ||||
| Authorized Officer | ||||
Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution (and set forth in such Board Resolution or, to the extent established
pursuant to (rather than in) such Board Resolution, in an Officer’s Certificate detailing such
establishment), and/or established in one or more indentures supplemental hereto, prior to the
initial issuance of Securities of any series,
(a) the title of the Securities of the series (which shall distinguish the Securities of the
series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 2.08, 2.09, 2.11 or 11.03);
(c) the date or dates on which the principal of the Securities of the series is payable;
(d) the rate or rates at which the Securities of the series shall bear interest, if any, or,
if other than on the basis of a 360-day year of twelve 30-day months, the method by which such rate
shall be determined, the date or dates from which such interest shall accrue, the interest payment
dates on which such interest shall be payable and the record dates for the determination of Holders
to whom interest is payable;
(e) the place or places where the principal of and any interest on Securities of the series
shall be payable (if other than as provided in Section 3.03);
(f) the price or prices at which, the date or dates after which, the period or periods within
which and the terms and conditions upon which Securities of the series may be redeemed, in whole or
in part, at the option of the Issuer, pursuant to any sinking fund or otherwise;
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(g) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which and the terms and
conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or
in part, pursuant to such obligation;
(h) the denominations in which Securities of the series shall be issuable;
(i) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 4.01 or provable in bankruptcy pursuant to Section 4.02;
(j) if other than such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public or private debts, the coin or currency (including any
composite currency) in which payment of the principal and interest on the Securities of the series
shall be denominated or payable, the method pursuant to which payment shall be made and the manner
of determining the equivalent thereof in the currency of the United States of America for purposes
of the definition of “Outstanding” in Article 1.
(k) if the principal of or interest on the Securities of the series are to be payable, at the
election of the Issuer or a Holder thereof, in a coin or currency (including any composite
currency) other than that in which the Securities are stated to be payable, the period or periods
within which, and the terms and conditions upon which, such election may be made;
(l) if the amounts of payments of principal or interest, if any, on the Securities of the
series may be determined with reference to an index or are otherwise not fixed on the Original
Issue Date thereof, the manner in which such amounts shall be determined;
(m) the forms of the Securities of the series;
(n) any trustees, authenticating or paying agents, transfer agents or registrars or any other
agents with respect to the Securities of such series;
(o) whether the Securities of the series will be issued in whole or in part in the form of one
or more Global Securities and, in such case, the Depositary with respect to such Global Security or
Securities;
(p) with respect to a series of Securities the rights of the Issuer to merge, consolidate,
amalgamate or otherwise restructure and specify the conditions upon which such rights are
precedented; and
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(q) any other terms of the series (which terms shall not conflict with the provisions of this
Indenture).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such Board Resolution (and set forth in
such Board Resolution or, to the extent established pursuant to (rather than in) such Board
Resolution, in an Officer’s Certificate detailing such establishment) or in any such indenture
supplemental hereto.
Section 2.04. Authentication and Delivery of Securities. At any time and from time to time
after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series
executed by the Issuer to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the Issuer contained in a
Company Order. In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall be entitled to receive, and
(subject to Section 5.01) shall be fully protected in relying upon:
(a) any Board Resolution, Officer’s Certificate and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 specifying the terms of the Securities;
(b) Officer’s Certificates of the Issuer certifying the form and terms of the Securities,
stating that the form and terms of the Securities have been established as required pursuant to
Sections 2.01 and 2.03 and comply with the Indenture and covering such other matters as the Trustee
may reasonably request;
(c) one or more Opinions of Counsel to the effect that
(i) the form or forms and terms of such Securities have been established as required
pursuant to Sections 2.01 and 2.03 in conformity with the provisions of this Indenture;
(ii) such Securities, when authenticated and delivered by the Trustee and issued by
the Issuer in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and binding obligations of the Issuer;
(iii) all laws and requirements in respect of the execution and delivery by the
Issuer of the Securities have been complied with; and
(iv) covering such other matters as the Trustee may reasonably request.
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(d) if the Securities being issued are Original Issue Discount Securities, an Officer’s
Certificate of the Issuer setting forth the Yield to Maturity for the Securities and any other
facts required to compute amounts due on acceleration, unless such Yield to Maturity and other
facts are specified in the form of the Securities.
The Trustee shall have the right to decline to authenticate and deliver any Securities under
this Section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken by the Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees or Responsible
Officers shall determine that such action would expose the Trustee to personal liability to
existing Holders.
Section 2.05. Execution of Securities. The Securities shall be signed on behalf of the
Issuer by any officer of the Issuer so authorized by the Board of Directors. Such signatures may
be the manual or facsimile signatures of the present or any future such officers. The seal of the
Issuer may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors or defects in any
such reproduction of such signature shall not affect the validity or enforceability of any Security
that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the Securities shall cease to
be such officer before the Security so signed shall be authenticated and delivered by the Trustee
or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be such officer of the
Issuer; and any Security may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security, shall be the proper officers of the Issuer, although at the
date of the execution and delivery of this Indenture any such person was not such an officer.
Section 2.06. Certificate of Authentication. Only such Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture.
Section 2.07. Denomination and Date of Securities; Payments of Interest. The Securities
shall be issuable as registered securities without coupons and in denominations as shall be
specified as contemplated by Section 2.03. In the
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absence of any such specification with respect to the Securities of any series, the Securities
of such series shall be issuable in denominations of $2,000 and integral multiples of $1,000. The
Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance
with such plan as the officers of the Issuer executing the same may determine with the approval of
the Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall bear interest, if any, from
the date and shall be payable on the dates, in each case, which shall be specified as contemplated
by Section 2.03.
The person in whose name any Security of any series is registered at the close of business on
any record date applicable to a particular series with respect to any interest payment date for
such series shall be entitled to receive the interest, if any, payable on such interest payment
date notwithstanding any transfer or exchange of such Security subsequent to the record date and
prior to such interest payment date, except if and to the extent the Issuer shall default in the
payment of the interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding Securities for such
series are registered at the close of business on a subsequent record date (which shall be not less
than five Business Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of the Issuer to the Holders of Securities not less than 15
days preceding such subsequent record date. The term “record date” as used with respect to any
interest payment date (except a date for payment of defaulted interest) shall mean the date
specified as such in the terms of the Securities of any particular series, or, if no such date is
so specified, if such interest payment date is the first day of a calendar month, the fifteenth day
of the next preceding calendar month or, if such interest payment date is the fifteenth day of a
calendar month, the first day of such calendar month, whether or not such record date is a Business
Day.
Section 2.08. Registration, Transfer and Exchange.
(a) Global Securities. This Section 2.08(a) shall apply only to Global Securities deposited
with the Depository unless otherwise provided as contemplated by Section 2.03.
Unless the Global Security is presented by an authorized representative of the Depository to
the Issuer or its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of a nominee of the Depository and any payment is made to such
nominee, any transfer, pledge or other use of the Global Security in registered form for value or
otherwise shall be wrongful since the registered owner of such Global Security, the nominee of the
Depository, has an interest in such Global Security.
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Except as otherwise specified as contemplated by Section 2.03 hereof, any Global Security
shall be exchangeable for definitive Securities only as provided in this paragraph. A Global
Security shall be exchangeable pursuant to this Section 2.08 only if
(i) the Depository notifies the Issuer that it is unwilling or unable to continue to
hold such Global Security or if at any time the Depository ceases to be a clearing agency
registered under the Exchange Act, as amended, and a successor Depository is not appointed
by the Issuer within 90 days,
(ii) there shall have occurred and be continuing an Event of Default with respect to
the Securities, or
(iii) at any time if the Issuer in its sole discretion determines that the Global
Securities or any of them should be exchanged for definitive Securities.
The Issuer shall notify the Trustee in writing that such exchange has taken place and that the
Depository is no longer the Holder of such Global Security, in whole or in part. Unless and until
such notice is received by the Trustee, the Trustee shall be entitled to assume that no such
exchange of Global Security for definitive Securities has occurred, and shall have no liability
with respect to any payment in reliance thereon. Any Global Security that is exchangeable pursuant
to this Section 2.08 shall be exchangeable for definitive Securities in registered form, bearing
interest (if any) at the same rate or pursuant to the same formula, having the same date of
issuance, redemption provisions, if any, specified currency and other terms and of differing
denominations aggregating a like amount as the Global Security so exchangeable. Definitive
Securities shall be registered in the names of the owners of the beneficial interests in such
Global Security as such names are from time to time provided by the relevant Agent Member holding
interests in such Global Security (as such Agent Member is identified from time to time by the
Depository).
No Global Security may be transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another nominee of the Depository
or by the Depository or any such nominee to a successor of the Depository or a nominee of such
successor. Except as provided above, owners solely of beneficial interests in a Global Security
shall not be entitled to receive physical delivery of Securities in definitive form and will not be
considered the holders thereof for any purpose under this Indenture.
In the event that a Global Security is surrendered for redemption in part pursuant to Section
11.02, the Issuer shall execute, and the Trustee shall
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authenticate and deliver to the Depository for such Global Security, without service charge, a
new Global Security, in a denomination equal to the unredeemed portion of the principal of the
Global Security so surrendered.
The Agent Members shall have no rights under this Indenture with respect to any Global
Security held on their behalf by a Depository, and such Depository may be treated by the Issuer,
the Trustee, and any agent of the Issuer, or the Trustee as the owner of such Global Security for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer,
the Trustee, or any agent of the Issuer, or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by a Depository or impair, as between a
Depository and its Agent Members, the operation of customary practices governing the exercise of
the rights of a holder of any Security, including without limitation the granting of proxies or
other authorization of participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or take under this
Indenture.
In connection with any exchange of interests in a Global Security for definitive Securities,
as provided in this subsection (a), then without unnecessary delay but in any event not later than
the earliest date on which such interests may be so exchanged, the Issuer shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the principal amount of such
Global Security executed by the Issuer. On or after the earliest date on which such interests may
be so exchanged, such Global Security shall be surrendered by the Depository to the Trustee, as the
Issuer’s agent for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and deliver, in exchange
for each portion of such Global Security, an equal aggregate principal amount of definitive
Securities of authorized denominations as the portion of such Global Security to be exchanged. Any
Global Security that is exchangeable pursuant to this Section 2.08 shall be exchangeable for
Securities issuable in the denominations specified as contemplated by Section 2.03 and registered
in such names as the Depository that is the Holder of such Global Security shall direct. If a
definitive Security is issued in exchange for any portion of a Global Security after the close of
business at the office or agency where such exchange occurs on any record date and before the
opening of business at such office or agency on the relevant payment date, interest payments will
not be payable on such payment date in respect of such definitive Security, but will be payable on
such payment date only to the person to whom interest payments in respect of such portion of such
Global Security are payable.
The Depository may grant proxies and otherwise authorize any person, including Agent Members
and persons that may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture with respect to the Securities.
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(b) The Issuer will keep or cause to be kept at each office or agency to be maintained for the
purpose as provided in Section 3.03 a register or registers in which, subject to such reasonable
regulations as it may prescribe, it will register, and will register the transfer of, Securities as
in this Article provided. Such register shall be in written form in the English language or in any
other form capable of being converted into such form within a reasonable time. At all reasonable
times such register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of any series at any such
office or agency to be maintained for the purpose as provided in Section 3.03, the Issuer shall
execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees
a new Security or Securities of the same series in authorized denominations for a like aggregate
principal amount.
Any Security or Securities of any series may be exchanged for a Security or Securities of the
same series in other authorized denominations, in an equal aggregate principal amount. Securities
of any series to be exchanged shall be surrendered at any office or agency to be maintained by the
Issuer for the purpose as provided in Section 3.03, and the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor the Security or Securities of the same series
which the Securityholder making the exchange shall be entitled to receive and bearing numbers not
contemporaneously outstanding.
All Securities presented for registration of transfer, exchange, redemption or payment shall
(if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form reasonably satisfactory to the Issuer and the Trustee
duly executed by, the Holder or his attorney duly authorized in writing.
The Issuer or the Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any exchange or registration of transfer
of Securities and any other expenses (including the fees and expenses of the Trustee). No service
charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of (a) any Securities of
any series for a period of 15 days next preceding the due date for any payment of principal in
respect of the Securities, the first mailing of notice of redemption of Securities of such series
to be redeemed, or (b) any Securities selected, called or being called for redemption except, in
the case of any Security where public notice has been given that such Security is to be redeemed in
part, the portion thereof not so to be redeemed.
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All Securities issued upon any registration of transfer or exchange of Securities shall be
valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any
temporary or definitive Security (including any Global Security) shall become mutilated, defaced or
be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of
the same series and bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substitute Security shall furnish
to the Issuer and to the Trustee and any agent of the Issuer, or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer or the Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith. In case any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer
may instead of issuing a substitute Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such
payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee
such security or indemnity as any of them may require to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee
and any agent of the Issuer, or the Trustee evidence to their satisfaction of the destruction, loss
or theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions of this Section 2.09
by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Issuer whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities of such series duly authenticated and delivered
hereunder. All Securities shall be held and owned upon the express condition that, to the extent
permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other
rights or remedies
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notwithstanding any law or statute existing or hereafter enacted to the contrary with respect
to the replacement or payment of negotiable instruments or other securities without their
surrender.
Section 2.10. Cancellation of Securities; Destruction Thereof. All Securities surrendered
for payment, redemption, registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer, or any agent of the Issuer,
or the Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it in accordance with its customary procedures; and no Securities
shall be issued in lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall, subject to the record retention requirements of the Exchange Act, as
amended, destroy cancelled Securities held by it and upon written request of the Issuer deliver a
certificate of destruction to the Issuer. If the Issuer shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.11. Temporary Securities. Pending the preparation of definitive Securities for any
series, the Issuer may execute and the Trustee shall authenticate and deliver temporary Securities
for such series, having endorsed thereon Securities duly executed by the Issuer in form reasonably
satisfactory to the Trustee). Temporary Securities of any series shall be issuable as registered
Securities without coupons, of any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer with the concurrence
of the Trustee. Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and be
authenticated by the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities. Without unreasonable delay the Issuer shall
execute and shall furnish definitive Securities of such series and thereupon temporary Securities
of such series may be surrendered in exchange therefor without charge at each office or agency to
be maintained by the Issuer for that purpose pursuant to Section 3.03, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such series a like aggregate
principal amount of definitive Securities of the same series of authorized denominations. Until so
exchanged, the temporary Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Section 2.12. CUSIP Numbers. The Issuer in issuing any series of the Securities may use
CUSIP numbers, if then generally in use, and thereafter with respect to such series, the Trustee
may use such numbers in any notice of
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redemption with respect to such series. The Issuer shall promptly notify the Trustee in
writing of any change in the CUSIP numbers.
ARTICLE 3
Covenants Of The Issuer And The Trustee
Covenants Of The Issuer And The Trustee
Section 3.01. Payment of Principal and Interest. The Issuer covenants and agrees for the
benefit of the Holders of each series of Securities that it will duly and punctually pay or cause
to be paid the principal of, and interest, if any, on, each of the Securities of such series at the
place or places, at the respective times and in the manner provided in such Securities. Each
installment of interest on the Securities of any series may be paid by wire transfer in immediately
available funds to a U.S.-dollar account maintained by the Holder of Securities or its nominee
entitled thereto as they shall appear on the registry books of the Issuer.
Section 3.02. Additional Amounts. The Issuer’s obligation, if any, to pay additional amounts
shall be specified in any Board Resolution, Officer’s Certificate or supplemental indenture
establishing the terms of Securities of a series in accordance with Section 2.03.
Section 3.03. Offices for Payments, etc. So long as any of the Securities of any series
remain Outstanding, the Issuer will maintain in the Borough of Manhattan, The City of New York, the
following for the Securities of such series (unless otherwise provided for in the Securities of
such series): an office or agency where (a) the Securities of such series may be presented for
payment, (b) the Securities may be presented for registration of transfer and for exchange as in
this Indenture provided and (c) notices and demands to or upon the Issuer in respect of the
Securities or of this Indenture may be served. The Issuer will give to the Trustee written notice
of the location of any such office or agency and of any change of location thereof. The Issuer
shall designate the office to be maintained by the Issuer for each such purpose in accordance with
Section 2.03. In case the Issuer fails to so designate or maintain any such office or agency or
fails to give such notice of the location or of any change in the location thereof, presentations
and demands may be made and notices may be served at the Corporate Trust Office.
The Issuer may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
or where such notices or demands may be served and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner relieve the Issuer of
any obligation to maintain an office or agency in the Borough of Manhattan, The City of New York
for Securities of any series for such purposes. The Issuer will give written notice to the Trustee
of any such designation or rescission and of any such change in the location of any other office or
agency. In
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addition, the Issuer will, to the extent possible as a matter of law, maintain a paying agent
with a specified office in a Member State of the EU that will not be obligated to withhold or
deduct tax pursuant to EU Directive 2003/48/EC on the taxation of savings or any law implementing
or complying with, or introduced in order to conform to, the Directive. The Issuer shall give
written notice to the Trustee of any such designation or rescission and of any such change in the
location of any other office or agency
Section 3.04. Appointment to Fill a Vacancy in Office of Trustee. The Issuer, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 5.09, a Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
Section 3.05. Payment Agents. Whenever the Issuer shall appoint a paying agent with respect
to the Securities of any series other than the Trustee or the initial paying agent appointed under
an indenture supplemental hereto, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section,
(a) that it will comply with the provisions of the Trust Indenture Act applicable to it as a
paying agent,
(b) that it will hold all sums received by it as such agent for the payment of the principal
of or interest, if any, on the Securities of such series (whether such sums have been paid to it by
the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of
the Holders of the Securities of such series or of the Trustee,
(c) that it will give the Trustee notice of any failure by the Issuer (or by any other obligor
on the Securities of such series) to make any payment of the principal of or interest on the
Securities of such series when the same shall be due and payable, and
(d) that it will pay any such sums so held in trust by it to the Trustee upon the Trustee’s
written request at any time during the continuance of the failure referred to in clause (c) above.
The Issuer will, prior to 10:00 AM New York time on or at such other time and date as may be
agreed by the Issuer and the paying agent each due date of the principal of or interest, if any, on
the Securities of such series, deposit with the paying agent a sum sufficient to pay such principal
or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee in writing of any failure to take such action.
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If the Issuer shall act as paying agent with respect to the Securities of any series, it will,
on or before each due date of the principal of or interest, if any, on the Securities of such
series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of
such series a sum sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee in writing of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer may at any time, for the
purpose of obtaining a satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held
in trust for any such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust
as provided in this Section is subject to the provisions of Section 9.04 and 9.05.
Section 3.06. Compliance Certificates from the Issuer. The Issuer will furnish to the
Trustee on or before March 31 in each year (beginning with March 31, 2009), if Securities are then
Outstanding, a brief certificate (which need not comply with Section 10.05) from the principal
executive, financial or accounting officer of the Issuer as to his or her knowledge of the Issuer’s
compliance with all conditions and covenants under the Indenture (such compliance to be determined
without regard to any period of grace or requirement of notice provided under the Indenture).
Section 3.07. Securityholders Lists. If and so long as the Trustee shall not be the Security
registrar for the Securities of any series, the Issuer will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the
Holders of the Securities of such series pursuant to Section 312 of the Trust Indenture Act (a)
semi-annually not more than 15 days after each record date for the payment of interest on such
Securities, as hereinabove specified, as of such record date and on dates to be determined pursuant
to Section 2.03 for non-interest bearing securities in each year, and (b) at such other times as
the Trustee may request in writing, within thirty days after receipt by the Issuer of any such
request as of a date not more than 15 days prior to the time such information is furnished.
Section 3.08. Preservation of Information; Communication 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 3.07 and the
names and addresses of Holders received by the Trustee. The Trustee may destroy any list furnished
to it as provided in Section 3.07 upon receipt of a new list so furnished.
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The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
Every Holder, by receiving and holding Securities, agrees with the Issuer and the Trustee that
neither the Issuer nor the Trustee nor any agent of either of them shall be held accountable by
reason of any disclosure of information as to names and addresses of Holders made pursuant to the
Trust Indenture Act.
Section 3.09. Reports by the Issuer. The Issuer covenants to file with the Trustee, within
15 days after the Issuer is required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports which the Issuer may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such reports shall not constitute constructive notice of
any information contained therein or determinable from information contained therein, including the
Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officer’s Certificates).
Section 3.10. Reports by the Trustee. The Trustee shall transmit to Holders such 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 provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than 12 months shall be
transmitted no later than 15 July in each calendar year following the date hereof, so long as any
Securities are Outstanding hereunder, and shall be dated as of a date convenient to the Trustee no
more than 60 nor less than 45 days thereto.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Issuer. The Issuer will notify the Trustee when any Securities are listed on any stock
exchange.
ARTICLE 4
Remedies Of The Trustee And Securityholders On Event Of Default
Remedies Of The Trustee And Securityholders On Event Of Default
Section 4.01. Event Of Default Defined; Acceleration Of Maturity; Waiver Of Default. “Event
of Default” with respect to Securities of any series wherever used herein shall have the meaning
provided in the supplemental
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indenture, Officer’s Certificate or Board Resolution specifying the terms of Securities or in
the form of Security for such series. Consequences of an Event of Default and circumstances under
which holders shall be able to waive an Event of Default shall also be set out with respect to
Securities of any series in the supplemental indenture, Officer’s Certificate or Board Resolution
specifying the terms of Securities or in the form of Security for such series.
Section 4.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt. The Issuer
covenants that (a) in case default shall be made in the payment of any installment of interest on
any of the Securities of any series when such interest shall have become due and payable, and such
default shall have continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any series when the same
shall have become due and payable, whether upon maturity of the Securities of such series or upon
any redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer will pay
to the Trustee for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series for principal or
interest, as the case may be (with interest to the date of such payment upon the overdue principal
and, to the extent that payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case
of Original Issue Discount Securities) specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on
the Securities of any series to the registered Holders, whether or not the principal of and
interest on the Securities of such series shall be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such Securities and collect in
the manner provided by law out of the property of the Issuer or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.
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In case there shall be pending proceedings relative to the Issuer or any other obligor upon
the Securities under any applicable bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Issuer or such other obligor on
the property of the Issuer or such other obligor, or in case of any other comparable judicial
proceedings relative to the Issuer or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section shall be entitled and empowered, by intervention in such proceedings or
otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest (or, if
the Securities of any series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of
the Securityholders allowed in any judicial proceedings relative to the Issuer or other obligor
upon the Securities of any series, or to the creditors or property of the Issuer, or such other
obligor,
(b) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of
the Securities of any series in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing
similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or deliverable on any such
claims, and to distribute all amounts received with respect to the claims of the Securityholders
and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad faith and all other amounts due to
the Trustee or any predecessor Trustee pursuant to Section 5.06.
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Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.
All rights of action and of asserting claims under this Indenture, or under any of the
Securities, may be enforced by the Trustee without the possession of any of the Securities or the
production thereof on any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and
compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities in respect of which such action
was taken.
In any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be a party) the
Trustee shall be held to represent all the Holders of the Securities in respect of which such
action was taken, and it shall not be necessary to make any Holders of such Securities parties to
any such proceedings.
Section 4.03. Application of Proceeds. Any moneys collected by the Trustee pursuant to this
Article in respect of any series shall be applied in the following order at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on account of principal or interest,
upon presentation of the several Securities in respect of which monies have been collected and
stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced
principal amounts in exchange for the presented Securities of like series if only partially paid,
or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series in respect of which
monies have been collected, including reasonable compensation to the Trustee and each predecessor
Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or
bad faith and all other amounts due to the Trustee or any predecessor Trustee pursuant to Section
5.06.
SECOND: In case the principal of the Securities of such series in respect of which moneys
have been collected shall not have become and be then due and payable, to the payment of interest
on the Securities of such series in default in the order of the maturity of the installments of
such interest, with interest (to the
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extent that such interest has been collected by the Trustee) upon the overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in respect of which moneys have
been collected shall have become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment of such principal and
interest or yield to maturity, without preference or priority of principal over interest or yield
to maturity, or of interest or Yield to Maturity over principal, or of any installment of interest
over any other installment of interest, or of any Security of such series over any other Security
of such series, ratably to the aggregate of such principal and accrued and unpaid interest or Yield
to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any other person lawfully
entitled thereto.
Section 4.04. Suits for Enforcement. In case an Event of Default has occurred, has not been
waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to
enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 4.05. Restoration of Rights on Abandonment of Proceedings. In case the Trustee or
any Holder shall have proceeded to enforce any right under this Indenture and such proceedings
shall have been discontinued or abandoned for any reason, or shall have been determined adversely
to the Trustee or such Holder, then and in every such case the Issuer, the Trustee and such Holder
shall be restored respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
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Section 4.06. Limitations on Suits by Securityholders. No Holder of any Security of any
series shall have any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under
or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee such indemnity reasonably satisfactory to the Trustee as it may
require against the costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 4.09; it being understood and
intended, and being expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of any series shall
have any right in any manner whatever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of any other such Holder of Securities, or to obtain or
seek to obtain priority over or preference to any other such Holder or to enforce any right under
this Indenture, except in the manner herein provided and for the equal, ratable and common benefit
of all Holders of Securities of the applicable series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Section 4.07. Unconditional Right of Securityholders to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any Security, the right
of any Holder of any Security to receive payment of the principal of and interest, if any, on such
Security on or after the respective due dates expressed in such Security, or to institute suit for
the enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 4.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.
Except as provided in Section 4.06 no right or remedy herein conferred upon or reserved to the
Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.
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No delay or omission of the Trustee or of any Securityholder to exercise any right or power
accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.06 every power and remedy given by this Indenture or by law to
the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
Section 4.09. Control by Securityholders. The Holders of a majority in aggregate principal
amount of the Securities of each series affected (with each series voting as a separate class) at
the time Outstanding shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture; provided that such
direction shall not be otherwise than in accordance with law and the provisions of this Indenture
and provided further that (subject to the provisions of Section 5.01) the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith by its board of directors, the executive committee, or a trust committee of directors or
responsible officers of the Trustee shall determine that the action or proceedings so directed
would involve the Trustee in personal liability or if the Trustee in good faith shall so determine
that the actions or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so affected not joining in
the giving of said direction, it being understood that (subject to Section 5.01) the Trustee shall
have no duty to ascertain whether or not such actions or forbearances are unduly prejudicial to
such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any
action deemed proper by the Trustee and which is not inconsistent with such direction or directions
by Securityholders.
Section 4.10. Trustee to Give Notice of Default, but May Withhold in Certain Circumstances.
The Trustee shall give to the Securityholders of any series, as the names and addresses of such
Holders appear on the registry books, notice by mail of all defaults known to the Trustee which
have occurred with respect to such series, such notice to be transmitted within 90 days after the
occurrence thereof, unless such defaults shall have been cured before the giving of such notice
(the term “default” or “defaults” for the purposes of this Section being hereby defined to mean any
event or condition which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the principal of or
interest on any of the Securities of such series, or in the payment of any sinking or purchase fund
installment with respect to the Securities of such series, the Trustee shall be
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protected in withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors or trustees and/or responsible officers of the Trustee
in good faith determines that the withholding of such notice is in the interests of the
Securityholders of such series.
Section 4.11. Right of Court to Require Filing of Undertaking to Pay 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,
suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees, 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 may be limited by the supplemental indenture,
Officer’s Certificate or Board Resolution specifying the terms of Securities.
ARTICLE 5
Concerning The Trustee
Concerning The Trustee
Section 5.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default.
With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Securities of a particular series and after
the curing or waiving of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Securities of a series has occurred
(which has not been cured or waived) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture with respect to such series, and use the same degree of care and
skill in their exercise, as a prudent individual would exercise or use under the circumstances in
the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act or its own willful misconduct, except
that
(a) prior to the occurrence of an Event of Default with respect to the Securities of any
series and after the curing or waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the Trustee with respect to the Securities of any
series shall be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for
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the performance of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of any such
statements, certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Holders pursuant to Section 4.09 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.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.01 are in furtherance of and subject to Sections 315 and 316
of the Trust Indenture Act.
Section 5.02. Certain Rights of the Trustee. In furtherance of and subject to the Trust
Indenture Act, and subject to Section 5.01:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
Board Resolution, Officer’s Certificate or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented by the proper party or
parties;
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(b) any request, direction, order or demand of the Issuer mentioned herein shall be
sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be
herein specifically prescribed) or a Board Resolution;
(c) the Trustee may consult with counsel and the advice or Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in
it by this Indenture or to institute, conduct or defend any litigation hereunder or in connection
hereto at the request, order or direction of any of the Securityholders pursuant to the provisions
of this Indenture, unless such Securityholders shall have offered to the Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers conferred upon it by
this Indenture;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document
unless requested in writing so to do by the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if
paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer upon demand; and
(g) 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 not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder.
(h) the Trustee shall not be deemed to have notice or be charged with knowledge of any default
or Event of Default with respect to the Securities, unless
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either (1) a Responsible Officer shall have actual knowledge of such default or Event of
Default or (2) written notice of such default or Event of Default shall have been given to a
Responsible Officer by the Issuer or by any Holder of the Securities;
(i) the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(j) the Trustee shall not be required to give any bond or surety in respect of the execution
of its obligations under this Indenture; and
(k) the Trustee shall not be responsible for delays or failures in performance resulting from
acts beyond its control, such acts including, but not limited to, acts of God, strikes, lockouts,
riots and acts of war.
(l) anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee
be liable for special, indirect or consequential loss or damage of any kind whatsoever (including,
but not limited to, lost profits), even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.
Section 5.03. Trustee Not Responsible for Recitals, Disposition of Securities or Application
of Proceeds Thereof. The recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no representation as
to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Issuer of any of the Securities or of the proceeds
thereof.
Section 5.04. Trustee and Agents May Hold Securities; Collections, Etc. The Trustee or any
agent of the Issuer, or the Trustee, in its individual or any other capacity, may become the owner
or pledgee of Securities with the same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from
the Issuer with the same rights it would have if it were not the Trustee or such agent.
Section 5.05. Moneys Held by Trustee. Subject to the provisions of Sections 9.04 and 10.04
hereof, all moneys received by the Trustee or any paying agent shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by mandatory provisions of law. Neither
the Trustee nor any agent of the Issuer or the Trustee shall be under any liability for interest on
any moneys received by it hereunder. If and when the Trustee shall be or become a creditor of the
Issuer (or any other obligor on the Securities), the
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Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Issuer (or any such other obligor).
Section 5.06. Compensation and Indemnification of Trustee and its Prior Claim. The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuer covenant and agree to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly in its employ)
except to the extent any such expense, disbursement or advance may arise from its negligence or bad
faith and except with respect to any income or franchise taxes incurred by the Trustee in
connection with compensation receivable in respect of performing the Trustee’s duties as Trustee.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee for, and to hold it
harmless against, any loss, liability or expense arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and the performance of its
duties hereunder, including the costs and expenses of defending itself against or investigating any
claim of liability in the premises, except to the extent such loss liability or expense is due to
the negligence or bad faith of the Trustee or such predecessor Trustee. The obligations of the
Issuer under this Section to compensate and indemnify the Trustee and each predecessor Trustee and
to pay or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive the resignation or
removal of the Trustee and the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of the Holders of
particular Securities, and the Securities are hereby subordinated to such senior claim.
When the Trustee incurs any expenses or renders any services after the occurrence of an Event
of Default relating to insolvency or bankruptcy, such expenses and the compensation for such
services are intended to constitute expenses of administration under the United States Bankruptcy
Code (Title 11 of the United States Code) or any similar law for the relief of debtors.
Section 5.07. Right of Trustee to Rely on Officer’s Certificate, etc. Subject to Sections
5.01 and 5.02, whenever in the administration of the trusts of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established prior to taking or suffering
or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the part
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of the Trustee, be deemed to be conclusively proved and established by an Officer’s
Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 5.08. Persons Eligible for Appointment as Trustee. The Trustee for each series of
Securities hereunder shall at all times be a corporation organized and doing business under the
laws of the United States of America or of any State thereof or the District of Columbia having a
combined capital and surplus of at least $50,000,000, and which is eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of a Federal, State or District
of Columbia supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 5.09.
Section 5.09. Resignation and Removal; Appointment of Successor Trustee. (a) The Trustee, or
any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or
all series of Securities by giving written notice of resignation to the Issuer and by mailing
notice thereof by first class mail to Holders of the applicable series of Securities at their last
addresses as they shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the
applicable series by written instrument in duplicate, executed by authority of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to the resigning Trustee
and one copy to the successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30 days after the mailing
of such notice of resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona
fide Holder of a Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 4.10, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the
Trust Indenture Act with respect to any series of
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Securities after written request therefor by the Issuer or by any Securityholder who
has been a bona fide Holder of a Security or Securities of such series for at least six
months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 310(a) of the Trust Indenture Act and shall fail to resign after written request
therefor by the Issuer or by any Securityholder;
(iii) the Trustee shall become incapable of acting with respect to any series of
Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of
the Trustee or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation; or
(iv) the Trustee shall fail to perform its obligations to the Issuer under the
Indenture in any material respect;
then, in any such case, the Issuer may remove the Trustee with respect to any or all series of
Securities and appoint a successor trustee for such series by written instrument, in duplicate,
executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or, other than in the
case of paragraph (b)(iv) above and subject to Section 315(e) of the Trust Indenture Act, any
Securityholder who has been a bona fide Holder of a Security or Securities of the applicable 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 and the appointment of a successor
trustee with respect to such series. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Securities of each series
at the time Outstanding may at any time remove the Trustee with respect to Securities of such
series and appoint a successor trustee with respect to the Securities of such series by delivering
to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 6.01 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment
of a successor trustee with respect to such series pursuant to any of the provisions of this
Section 5.09(b) shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 5.10.
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Section 5.10. Acceptance of Appointment by Successor Trustee. Any successor trustee
appointed as provided in Section 5.09 shall execute and deliver to the Issuer and to its
predecessor trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee with respect to all or any applicable series
shall become effective and such successor trustee, without any further act, deed or conveyance,
shall become vested with all rights, powers, duties and obligations with respect to such series of
its predecessor hereunder, with like effect as if originally named as trustee for such series
hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee,
upon payment of any amounts due to it pursuant to Section 5.06, the trustee ceasing to act shall,
subject to Section 9.04 pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. Upon request of any such successor trustee, the
Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 5.06.
If a successor trustee is appointed with respect to the Securities of one or more (but not
all) series, the Issuer, the predecessor trustee and each successor trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of
any series as to which the predecessor trustee is not retiring shall continue to be vested in the
predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust
or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall accept appointment as
provided in this Section 5.10 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 5.08.
Upon acceptance of appointment by any successor trustee as provided in this Section 5.10, the
Issuer shall mail notice thereof by first-class mail to the Holders of Securities of any series for
which such successor trustee is acting as trustee at their last addresses as they shall appear in
the Security register. If the acceptance of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence may be combined with the notice
called for by Section 5.09. If the Issuer fails to mail such notice within ten
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days after acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Issuer.
Section 5.11. Merger, Conversion, Consolidation or Succession to Business of Trustee. 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 the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such corporation shall be eligible
under the provisions of Section 5.08 without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities of any series shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificate shall have the full force which it is
anywhere in the Securities of such series or in this Indenture provided that the certificate of the
Trustee shall have; provided, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities of any series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
ARTICLE 6
Concerning The Securityholders
Concerning The Securityholders
Section 6.01. Evidence of Action Taken by Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by this Indenture to be
given or taken by a specified percentage in principal amount of the Securityholders of any or all
series of the Securities may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of Securityholders in person or by
agent duly appointed in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee. Proof of
execution of any instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Sections 5.01 and 5.02) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this Article.
Section 6.02. Proof of Execution of Instruments and of Holding of Securities; Record Date.
Subject to Sections 5.01 and 5.02, the execution of any
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instrument by a Securityholder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be
reasonably satisfactory to the Trustee. The holding of Securities shall be proved by the Security
register or by a certificate of the registrar thereof. The Issuer may, but shall not be obligated
to, set a record date for purposes of determining the identity of Securityholders of any series
entitled to vote or consent to any action referred to in Section 6.01, which record date may be set
at any time or from time to time by notice to the Trustee. If a record date is fixed, then
notwithstanding Section 6.01 and Section 6.05, those persons who were Securityholders at such
record date (or their duly designated proxies), and only those persons, shall be entitled to give
such consent or to revoke any consent previously given or to take any such action, whether or not
such persons continue to be Securityholders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.
Section 6.03. Holders to Be Treated as Owners. The Issuer, the Trustee and any agent of the
Issuer or the Trustee may deem and treat the person in whose name any Security shall be registered
upon the Security register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal of and, subject to
the provisions of this Indenture, interest on such Security and for all other purposes; and neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon his order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
Section 6.04. Securities Owned by Issuer Deemed Not Outstanding. In determining whether the
Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series
have concurred in any request, demand, authorization, direction, notice, consent, waiver or other
action by Securityholders under this Indenture, Securities which are owned by the Issuer or any
other obligor on the Securities with respect to which such determination is being made or by any
person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether the Trustee shall be
protected in relying on any such action only Securities which a Responsible Officer the Trustee
knows are so owned shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee’s right so to act with respect to such Securities and that the pledgee is not the
Issuer or any other obligor upon the Securities or any person directly or indirectly controlling or
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controlled by or under direct or indirect common control with the Issuer or any other obligor
on the Securities. In case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly Officer’s Certificates
listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for
the account of any of the above-described persons; and, subject to Sections 5.01 and 5.02, the
Trustee shall be entitled to accept such Officer’s Certificates as conclusive evidence of the facts
therein set forth and of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
Section 6.05. Right of Revocation of Action Taken. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 6.01, of the taking of any action by the Holders
of the percentage in aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action, any Holder of a Security the
serial number or other distinguishing symbol of which is shown by the evidence to be included among
the serial numbers or other distinguishing symbols of the Securities the Holders of which have
consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners of such Security and
of any Securities issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made upon any such
Security. Any action taken by the Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in this Indenture in connection with
such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
ARTICLE 7
Supplemental Indentures
Supplemental Indentures
Section 7.01. Supplemental Indentures Without Consent of Securityholders. The Issuer when
authorized by or pursuant to a Board Resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force on the date of the execution thereof) for one or
more of the following purposes:
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(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer, or successive
successions, and the assumption by the successor corporation of the covenants, agreements and
obligations of the Issuer, as the case may be, pursuant to Article Eight;
(c) 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 5.10;
(d) to define the term “Event of Default” (and if such defined Events of Default are to be for
the benefit of less than all series of Securities, stating that such Events of Default are
expressly being included solely for the benefit of such series);
(e) to add to the covenants of the Issuer such further covenants, restrictions, conditions or
provisions (and if such further covenants, restrictions, conditions or provisions are to be for the
benefit of less than all series of Securities, stating that such covenants, restrictions,
conditions or provisions are expressly being included solely for the benefit of such series) as the
Board of Directors of the Issuer and the Trustee shall consider to be for the protection of the
Holders of Securities, and to make the occurrence, or the occurrence and continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in this Indenture as
herein set forth; provided, that in respect of any such additional covenant, restriction, condition
or provision such supplemental indenture may provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the right of the Holders of a
majority in aggregate principal amount of the Securities of such series to waive such an Event of
Default;
(f) to cure any ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture which may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture; or to make such other provisions in regard to matters or
questions arising under this Indenture or under any supplemental indenture as the Board of
Directors may deem necessary or desirable and which shall not adversely affect the interests of the
Holders of the Securities in any material respect;
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(g) to establish the form or terms of Securities of any series as permitted by Section 2.01
and Section 2.03;
(h) to add or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form, provided that any such action shall not adversely
affect the interests of the Holders of Securities of any series in any material respect; and
(i) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities, provided that any such addition, change or elimination (i) shall
neither (A) apply to any Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of
any such Security with respect to such provision or (ii) shall become effective only when there is
no Security Outstanding.
The Trustee is hereby authorized to join with the Issuer in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
Any supplemental indenture authorized by the provisions of this Section may be executed
without the consent of the Holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 7.02.
Section 7.02. Supplemental Indentures with Consent of Securityholders. With the consent
(evidenced as provided in Article Six) of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all series affected by such
supplemental indenture (each affected series voting as a separate class), the Issuer when
authorized by or pursuant to a Board Resolution, and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture of 1939 as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series; provided, that no such supplemental indenture shall
(i) extend the final maturity of any Security, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment
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of interest, if any, thereon, or reduce any amount payable on redemption thereof or
reduce the amount of the principal or an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof pursuant to Section 4.01 or
the amount thereof provable in bankruptcy pursuant to the consequences of an Event of
Default specified as contemplated by Section 4.02, or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if the Securities provide
therefor, any right of repayment at the option of the Securityholder without the consent
of the Holder of each Security so affected,
(ii) reduce the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected or
(iii) change in any manner adverse to the Holders of the Securities the terms and
conditions of the obligations of the Issuer in respect of the due and punctual payment of
the principal thereof and interest thereon or any sinking fund payments provided in
respect thereof, without the consent of the Holder of each Security so affected.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
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.
Upon the request of the Issuer accompanied by a copy of a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.01
the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Issuer shall mail a notice thereof by first class
mail to the Holders of Securities of each series
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affected thereby at their addresses as they shall appear on the Security register setting
forth in general terms the substance of such supplemental indenture. Any failure of the Issuer, to
mail such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
Section 7.03. Effect of Supplemental Indenture. Upon the execution of any supplemental
indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the Holders of Securities
of each series affected thereby shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms and conditions of
any such supplemental indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 7.04. Documents to be Given to Trustee. The Trustee, subject to the provisions of
Sections 5.01 and 5.02, shall receive Officer’s Certificates and Opinions of Counsel, as
appropriate, as conclusive evidence that any supplemental indenture executed pursuant to this
Article Seven are authorized and permitted by this Indenture and complies with the applicable
provisions of this Indenture.
Section 7.05. Notation on Securities in Respect of Supplemental Indentures. Securities of
any series authenticated and delivered after the execution of any supplemental indenture pursuant
to the provisions of this Article may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture. If the Issuer or the Trustee
shall so determine, new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Boards of Directors of the Issuer, to any modification of this Indenture contained
in any such supplemental indenture may be prepared and executed by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then Outstanding.
Section 7.06. Conformity with Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
ARTICLE 8
Consolidation, Merger, Sale Or Conveyance
Consolidation, Merger, Sale Or Conveyance
Section 8.01. Issuer May Consolidate, etc., on Certain Terms. The rights of the Issuer to
effect any amalgamation, reconstruction, consolidation or merger of the Issuer with or into any
other corporation or corporations (whether or not affiliated with the Issuer) and any conditions
associated with such rights shall be
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set forth in the supplemental indenture, Officer’s Certificate or Board Resolution specifying
the terms of Securities.
ARTICLE 9
Satisfaction And Discharge Of Indenture; Unclaimed Moneys
Satisfaction And Discharge Of Indenture; Unclaimed Moneys
Section 9.01. Satisfaction and Discharge of Indenture. If at any time (a) the Issuer shall
have paid or caused to be paid the principal of and interest, if any, on all the Securities of any
series Outstanding hereunder as and when the same shall have become due and payable, or (b) the
Issuer shall have delivered to the Trustee for cancellation all Outstanding Securities of any
series theretofore authenticated or (c) (i) all the Securities of such series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or are by their terms
to become due and payable within one year or are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption, and
(ii) the Issuer shall have irrevocably deposited or caused to be deposited with the Trustee as
trust funds the entire amount in cash (other than moneys repaid by the Trustee or any paying agent
to the Issuer in accordance with Section 9.05) or Government Obligations, maturing as to principal
and interest in such amounts and at such times as will insure the availability of cash, sufficient
to pay at maturity or upon redemption all Outstanding Securities of such series not theretofore
delivered to the Trustee for cancellation, including principal and interest, if any, due or to
become due on or prior to such date of maturity as the case may be, and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer with
respect to Securities of such series, then this Indenture shall cease to be of further effect with
respect to Securities of such series (except as to (i) rights of registration of transfer and
exchange of Securities of such series, and the Issuer’s right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of Holders
to receive payments of principal thereof and interest, if any, thereon, upon the original stated
due dates therefor (but not upon acceleration), and remaining rights of the Holders to receive
mandatory sinking fund payments, if any, from funds deposited with the Trustee (iv) the rights,
obligations and immunities of the Trustee hereunder and (v) the rights of the Securityholders of
such series as beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and the Trustee, on demand of the Issuer accompanied by an Officer’s
Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging such satisfaction of and discharging this Indenture with respect
to such series; provided that the rights of Holders of the Securities to receive amounts in respect
of principal of and interest, if any, on the Securities held by them shall not be delayed longer
than required by then-applicable mandatory rules or policies of any securities exchange upon which
the Securities are listed. The Issuer agrees to reimburse the Trustee for any
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costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee
for any services thereafter reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
Section 9.02. Application by Trustee of Funds Deposited for Payment of Securities. Subject
to Sections 9.04 and 9.05, all moneys deposited with the Trustee pursuant to Section 9.01 shall be
held in trust and applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as paying agent), to the Holders of the particular Securities of such
series for the payment or redemption of which such moneys have been deposited with the Trustee, of
all sums due and to become due thereon for principal and interest, if any; but such money need not
be segregated from other funds except to the extent required by law.
Section 9.03. Defeasance upon Deposit of Moneys or Government Obligations. At the Issuer’s
option, either (a) the Issuer shall be deemed to have been Discharged (as defined below) from its
obligations with respect to any series of Securities on the 91st day after the applicable
conditions set forth below have been satisfied or (b) the Issuer shall cease to be under any
obligation to comply with any term, provision or condition of any series of Securities specified in
the terms of such series of Securities pursuant to Section 2.03 hereto as being subject to
defeasance in accordance with this Section 9.03(b), and non-compliance with any such term,
provision or condition shall not give rise to any Event of Default due to a breach of covenant with
respect to such series of Securities at any time after the applicable conditions set forth below
have been satisfied:
(i) the Issuer shall have deposited or caused to be deposited irrevocably with the
Trustee or its agent as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such series (A) money
in an amount, or (B) Government Obligations of the government in the currency of which the
Securities of such series are denominated which through the payment of interest thereon
and principal thereof in accordance with their terms will provide, not later than the due
date of any payment, money in an amount, or (C) a combination of (A) and (B), sufficient,
in the opinion (with respect to (B) and (C)) of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge each installment of principal (including mandatory
sinking fund payments) of, and interest on, the outstanding Securities of such series on
the dates such installments of interest or principal are due or to and including the
redemption date irrevocably designated by the Issuer pursuant to subparagraph (iv) hereof;
(ii) no Event of Default or event which with notice or lapse of time would become an
Event of Default relating to insolvency or
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bankruptcy with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit;
(iii) the Issuer shall have delivered to the Trustee either (i) an Opinion of Counsel
of recognized counsel with respect to U.S. federal income tax matters to the effect that
Holders of the Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of the exercise of the option under this Section
9.03 and will be subject to Federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such option had not been exercised,
which Opinion of Counsel, in the case of the Securities of such series being discharged
pursuant to clause (a) only, shall state that it is based on a change of law after the
date of this Indenture, or (ii) a ruling to that effect received from or published by the
United States Internal Revenue Service, which ruling, in the case of the Securities of
such series being discharged pursuant to clause (a) only, is received or published after
the date of this Indenture;
(iv) if the Issuer has deposited or caused to be deposited money or Government
Obligations to pay or discharge the principal of and interest on the Outstanding
Securities of a series to and including a redemption date pursuant to subparagraph (i)
hereof, such redemption date shall be irrevocably designated by a Board Resolution
delivered to the Trustee on or prior to the date of deposit of such money or Government
Obligations, and such Board Resolution shall be accompanied by an irrevocable Company
Order that the Trustee give notice of such redemption in the name and at the expense of
the Issuer not less than 30 nor more than 60 days prior to such redemption date in
accordance with Section 11.02; and
(v) the Issuer shall have delivered to the Trustee and Officer’s Certificate and an
Opinion of Counsel each stating that all conditions precedent provided for relating to the
defeasance, have been complied with.
“Discharged” means that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by, and obligations under, the Securities of such series and to have
satisfied all the obligations under this Indenture relating to the Securities of such series (and
the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to receive, from the trust
fund described in clause (i) above, payment of the principal of and the interest on such Securities
when such payments are due; (B) the Issuer’s obligations, as the case may be, with respect to such
Securities under Sections 2.08, 2.09, 3.03 and 3.05; and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.
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Section 9.04. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction
and discharge of this Indenture with respect to Securities of any series, all moneys then held by
any paying agent under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to the Issuer or paid to the Trustee and thereupon such
paying agent shall be released from all further liability with respect to such moneys.
Section 9.05. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any
moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal
of or interest, if any, on any Security of any series and not applied but remaining unclaimed for
two years after the date upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Issuer and unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Security of such series shall,
unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which such Holder may be entitled
to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall
thereupon cease.
Section 9.06. Reinstatement. If the Trustee is unable to apply any money or Government
Obligations in accordance with Section 9.03 by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Issuer’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 9.03, until such time
as the Trustee or Paying Agent is permitted to apply all such money or Government Obligations in
accordance with Section 9.03; provided that, if the Issuer has made any payment of principle of or
interest on the Securities of any series because of the reinstatement of its obligations, the
Issuer shall be subrogated to the rights of the Holders of such Securities to receive such payment
from the money or Government Obligations held by the Trustee or Paying Agent.
ARTICLE 10
Miscellaneous Provisions
Miscellaneous Provisions
Section 10.01. Incorporators, Stockholders, Officers and Directors of Issuer Exempt from
Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in
this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or future stockholder, officer or
director, as such, of the Issuer or of any successor of the Issuer, either directly or
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through the Issuer or any successor of the Issuer, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released by the acceptance
of the Securities by the Holders thereof and as part of the consideration for the issue of the
Securities. Nothing in this Section shall be deemed to alter the obligations of the Issuer under
the Securities.
Section 10.02. Provisions of Indenture for the Sole Benefit of Parties and Securityholders.
Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to
give to any Person, other than the parties hereto and their successors and the Holders of the
Securities, any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 10.03. Successors and Assigns of Issuer Bound by Indenture. All the covenants,
stipulations, promises and agreements in this Indenture contained by or on behalf of the Issuer
shall bind its respective successors and assigns, whether so expressed or not.
Section 10.04. Notices and Demands on Issuer, Trustee and Securityholders. Any notice or
demand which by any provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders of Securities to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to Nokia
Corporation, ▇.▇. ▇▇▇ ▇▇▇, ▇▇-▇▇▇▇▇ ▇▇▇▇▇ Group, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇. Any
notice, direction, request or demand by the Issuer or any Securityholder to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all purposes, if given or made at the
Corporate Trust Office.
Where this Indenture provides for notice to Holders, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid,
to each Holder entitled thereto, at his last address as it appears in the Security register. In
any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver. For so long as the Securities of any
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series are represented by Global Securities, notices with respect to such series shall be
delivered to the Depository.
In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer and Securityholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving such notice as shall
be reasonably satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
Section 10.05. Officer’s Certificates and Opinions of Counsel; Statements to be Contained
Therein. Upon any application or demand by the Issuer to the Trustee to take any action under any
of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel such action is authorized or permitted by the Indenture and that all such conditions
precedent have been complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include (a)
a statement that the person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based, (c) a statement that, in
the opinion of such person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous. Any certificate, statement or
opinion of counsel may be based, insofar as it relates to factual matters, information with respect
to which is in the possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters upon which his
certificate, statement
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or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed with the
Trustee shall contain a statement that such firm is independent.
Section 10.06. Payments Due on Saturdays, Sundays and Holidays. If the date of maturity of
interest on or principal of the Securities of any series or the date fixed for redemption or
repayment of any such Security shall not be a Business Day, then payment of interest or principal
need not be made on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date of maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.
Section 10.07. Conflict of any Provision of Indenture with Trust Indenture Act. If and to
the extent that any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust
Indenture Act (an “incorporated provision”), such incorporated provision shall control.
Section 10.08. Governing Law. This Indenture and each Security shall be governed by and
construed in accordance with the laws of the State of New York, without regard to conflicts of laws
principles.
Section 10.09. Counterparts. This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together constitute but one and the
same instrument.
Section 10.10. Effect of Headings. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 10.11. Submission to Jurisdiction. The Issuer agrees that any legal suit, action or
proceeding arising out of or relating to the Indenture or the Securities may be instituted in any
state or federal court in the State and County of New York, United States of America, waives to the
extent it may effectively do
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so, any objection which it may have now or hereafter to the laying of the venue of any such
suit, action or proceeding, and irrevocably submits to the jurisdiction of any such court in any
such suit, action or proceeding. The Issuer hereby designates
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as the Issuer’s
authorized agent to accept and acknowledge on its behalf service of any and all process which may
be served in any such suit, action or proceeding in any such court and agrees that service of
process upon said agent at its office at 102 Corporate Park Drive,
White Plains, New York, New York (or at such other address in the
Borough of Manhattan, The City of New York, as such agent may designate by written notice to the
Issuer and the Trustee), and written notice of said service to the Issuer, mailed or delivered to
it, at ▇.▇. ▇▇▇ ▇▇▇, ▇▇-▇▇▇▇▇ ▇▇▇▇▇ Group, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, attention of
the Secretary (until another address of the Issuer is filed by the Issuer with the Trustee) shall
be deemed in every respect effective service of process upon the Issuer in any such suit, action or
proceeding and shall be taken and held to be valid personal service upon the Issuer, whether or not
the Issuer shall then be doing, or at any time shall have done, business within the State of New
York, and that any such service of process shall be of the same force and validity as if service
were made upon it according to the laws governing the validity and requirements of such service in
such state, and waives all claim of error by reason of any such service. Said designation and
appointment shall be irrevocable until the Indenture shall have been satisfied and discharged in
accordance with Article Nine.
ARTICLE 11
Redemption Of Securities And Sinking Funds
Redemption Of Securities And Sinking Funds
Section 11.01. Applicability of Article. The provisions of this Article shall be applicable
to the Securities of any series which, pursuant to the terms of such Securities set forth in the
supplemental indenture, Officer’s Certificate or Board Resolution specifying the terms of
Securities, are redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section 2.03 for Securities
of such series.
Section 11.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the
Holders of Securities of any series to be redeemed as a whole or in part at the option of the
Issuer shall be given by mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the registry books.
Any notice which is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or
any defect in the notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect
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the validity of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal amount of each
Security of such series held by such Holder to be redeemed, the date fixed for redemption, the
redemption price, the place or places of payment, that payment will be made upon presentation and
surrender of such Securities, that such redemption is pursuant to the mandatory or optional sinking
fund, or both, if such be the case, or, if applicable, that such redemption is optional and is
effected pursuant to the terms set forth in the supplemental indenture, Officer’s Certificate or
Board Resolution specifying the terms of Securities, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a
series is to be redeemed in part only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of such series, in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the option of the
Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at
the expense of the Issuer.
At least one Business Day prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or with one or more
paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold
in trust as provided in Section 3.05) an amount of money sufficient to redeem on the redemption
date all the Securities of such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If less than all the
outstanding Securities of a series are to be redeemed, the Issuer will deliver to the Trustee at
least 70 days prior to the date fixed for redemption an Officer’s Certificate stating the aggregate
principal amount of Securities to be redeemed.
If fewer than all the Securities of a series are to be redeemed, the Trustee shall select the
Securities of such series to be redeemed in whole or in part by lot or by any other method the
Trustee considers fair and appropriate, subject to any stock exchange requirements. Securities may
be redeemed in part in principal amounts equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly notify the Issuer in
writing of the Securities of such series selected for redemption and, in the case of any Securities
of such series selected for partial redemption, the principal amount thereof to be redeemed. For
all purposes of this Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities of any series shall relate, in the case of any Security redeemed or to
be redeemed only in
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part, to the portion of the principal amount of such Security which has been or is to be
redeemed.
Section 11.03. Payment of Securities Called for Redemption. If notice of redemption has been
given as provided above, the Securities or portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after
said date (unless the Issuer shall default in the payment of such Securities at the redemption
price, together with interest accrued, if any, to said date) interest on the Securities or portions
of Securities so called for redemption shall cease to accrue and, except as provided in Sections
5.05 and 9.05, such Securities shall cease from and after the date fixed for redemption to be
entitled to any benefit or security under this Indenture, and the Holders thereof shall have no
right in respect of such Securities except the right to receive the redemption price thereof and
unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities
at a place of payment specified in said notice, said Securities or the specified portions thereof
shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption; provided that any semiannual payment of interest
becoming due on the date fixed for redemption shall be payable to the Holders of such Securities
registered as such on the relevant record date subject to the terms and provisions of Section 2.07
hereof.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of
the Issuer, a new Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
Section 11.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption.
Securities shall be excluded from eligibility for selection for redemption if they are identified
by registration and certificate number in a written statement signed by an authorized officer of
the Issuer and delivered to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
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Section 11.05. Mandatory and Optional Sinking Funds. 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 any series is herein referred to as an “optional sinking fund payment”. The date
on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment
date”.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the
Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit
for optional sinking fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision contained in the terms of such series. Securities
so delivered or credited shall be received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment date for any series,
the Issuer will deliver to the Trustee a written statement (which need not contain the statements
required by Section 10.05) signed by an authorized officer of the Issuer (a) specifying the portion
of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be
satisfied by credit of Securities of such series, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the payment of interest,
if any, or Events of Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Issuer intends to exercise its
right to make an optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor
as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such written statement (or reasonably
promptly thereafter if acceptable to the Trustee). Such written statement shall be irrevocable and
upon its receipt by the Trustee the Issuer shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Issuer, on or before any such sixtieth day, to deliver such
written statement and Securities specified in this paragraph, if any, shall not constitute a
default but shall constitute, on and as
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of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date shall be paid entirely
in cash without the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or a lesser sum if the Issuer shall so request) with
respect to the Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for redemption. If such
amount shall be $50,000 or less and the Issuer makes no such request then it shall be carried over
until a sum in excess of $50,000 is available. The Trustee shall select, in the manner provided in
Sections 11.02 and 11.04, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if
requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities of
such series (or portions thereof) so selected. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the manner provided in
Section 11.02 (and with the effect provided in Section 11.03) for the redemption of Securities of
such series in part at the option of the Issuer. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be applied in
accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular Securities of such
series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to
the payment of the principal of, and interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest accrued to the date
fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or mail any notice of redemption of Securities for such series by operation of the
sinking fund during the continuance of a default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of redemption of any Securities shall
theretofore
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have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided
that it shall have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default, be deemed to have been collected under Article
Four and held for the payment of all such Securities. In case such Event of Default shall have
been waived as provided in the supplemental indenture, Officer’s Certificate or Board Resolution
specifying the terms of Securities or the default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the redemption of such
Securities.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and
their respective corporate seals to be hereunto affixed and attested, all as of [ ],
2009.
| NOKIA CORPORATION |
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| By: | /s/ | |||
| Name: Title: |
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| By: | /s/ | |||
| Name: Title: |
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| LAW DEBENTURE TRUST COMPANY OF NEW YORK |
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| By: | /s/ | |||
| Name: Title: |
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