EXHIBIT 4.1
================================================================================
TELE-COMMUNICATIONS, INC.
and
Trustee
______________
Indenture
Dated as of
______________
Debt Securities
================================================================================
CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION(S)
310 (a)(1)............................................. 7.10
(a)(2)............................................. 7.10
(a)(3)............................................. N.A.
(a)(4)............................................. N.A.
(a)(5)............................................. 7.10
(b)................................................ 7.08; 7.10; 10.02
(c)................................................ N.A.
311 (a)................................................ 7.11
(b)................................................ 7.11
(c)................................................ N.A.
312 (a)................................................ 2.07
(b)................................................ 10.03
(c)................................................ 10.03
313 (a)................................................ 7.06
(b)(1)............................................. N.A.
(b)(2)............................................. 7.06
(c)................................................ 10.02
(d)................................................ 7.06
314 (a)................................................ 4.05; 4.06; 10.02
(b)................................................ N.A.
(c)(1)............................................. 10.04
(c)(2)............................................. 10.04
(c)(3)............................................. N.A.
(d)................................................ N.A.
(e)................................................ 10.05
(f)................................................ N.A.
315 (a)................................................ 7.01(b)
(b)................................................ 7.05; 10.02
(c)................................................ 7.01(a)
(d)................................................ 7.01(c)
(e)................................................ 6.11
316 (a)(last sentence)................................. 10.06
(a)(1)(A).......................................... 6.05
(a)(1)(B).......................................... 6.04
(a)(2)............................................. N.A.
(b)................................................ 6.07
i
317 (a)(1)............................................ 6.08
(a)(2)............................................ 6.09
(b)............................................... 2.06
318 (a)............................................... 10.01
___________
N.A. means not applicable.
ii
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.......................................................... 1
Section 1.02. Other Definitions.................................................... 6
Section 1.03. Incorporation by Reference of Trust Indenture Act.................... 6
Section 1.04. Rules of Construction................................................ 7
ARTICLE II
THE SECURITIES
Section 2.01. Forms Generally...................................................... 7
Section 2.02. Amount Unlimited; Issuable in Series................................. 8
Section 2.03. Denominations........................................................ 12
Section 2.04. Execution, Authentication, Delivery and Dating....................... 13
Section 2.05. Registrar, Paying Agent, Conversion Agent and Authenticating Agent... 16
Section 2.06. Paying Agent to Hold Money and Securities in Trust................... 18
Section 2.07. Securityholder Lists................................................. 18
Section 2.08. Transfer and Exchange................................................ 18
Section 2.09. Replacement Securities............................................... 23
Section 2.10. Securities in Global Form............................................ 24
Section 2.11. Temporary Securities................................................. 25
Section 2.12. Cancellation......................................................... 25
Section 2.13. Payment of Interest; Defaulted Interest.............................. 26
Section 2.14. Persons Deemed Owners................................................ 27
Section 2.15. CUSIP Numbers........................................................ 28
ARTICLE III
REDEMPTION
Section 3.01. Applicability of Article............................................. 28
Section 3.02. Notices to Trustee................................................... 28
Section 3.03. Selection of Securities to be Redeemed............................... 29
Section 3.04. Notice of Redemption................................................. 30
Section 3.05. Effect of Notice of Redemption....................................... 31
Section 3.06. Deposit of Redemption Price.......................................... 32
Section 3.07. Securities Redeemed in Part.......................................... 32
Section 3.08. Conversion or Exchange Arrangement on Call for Redemption............ 32
iii
ARTICLE IV
COVENANTS
Section 4.01. Payment of Securities; Maintenance of Office or Agency................. 33
Section 4.02. SEC Reports............................................................ 35
Section 4.03. Compliance Certificate................................................. 35
Section 4.04. Corporate Existence.................................................... 36
Section 4.05. Waiver of Certain Covenants............................................ 36
Section 4.06. No Lien Created........................................................ 36
Section 4.07. Calculation of Original Issue Discount................................. 36
ARTICLE V
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, etc............................................ 37
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.02. Acceleration........................................................... 38
Section 6.03. Other Remedies......................................................... 39
Section 6.04. Waiver of Existing Defaults............................................ 39
Section 6.05. Control by Majority.................................................... 40
Section 6.06. Limitation on Suits.................................................... 40
Section 6.07. Rights of Holders to Receive Payment and to Convert or Exchange........ 40
Section 6.08. Collection Suit by Trustee............................................. 41
Section 6.09. Trustee May File Proofs of Claim....................................... 41
Section 6.10. Priorities............................................................. 41
Section 6.11. Undertaking for Costs.................................................. 41
ARTICLE VII
TRUSTEE
Section 7.01. Duties of Trustee...................................................... 42
Section 7.02. Rights of Trustee...................................................... 43
Section 7.03. Individual Rights of Trustee........................................... 43
Section 7.04. Trustee's and Authenticating Agent's Disclaimer........................ 44
Section 7.05. Notice of Defaults..................................................... 44
Section 7.06. Reports by Trustee to Holders.......................................... 44
Section 7.07. Compensation and Indemnity............................................. 44
iv
Section 7.08. Replacement of Trustee.............................. 45
Section 7.09. Successor Trustee by Merger, etc.................... 46
Section 7.10. Eligibility; Disqualification....................... 46
Section 7.11. Preferential Collection of Claims Against Company... 46
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.02. Application of Trust Fund........................... 48
Section 8.03. Repayment to Company................................ 48
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.......................... 48
Section 9.02. With Consent of Holders............................. 49
Section 9.03. Compliance with Trust Indenture Act................. 51
Section 9.04. Effect of Amendments and Supplements................ 51
Section 9.05. Notation on or Exchange of Securities............... 51
Section 9.06. Trustee to Sign Amendments, etc..................... 51
ARTICLE X
MISCELLANEOUS
Section 10.02. Notices............................................. 52
Section 10.03. Communication by Holders with Other Holders......... 53
Section 10.04. Certificate and Opinion as to Conditions Precedent.. 54
Section 10.05. Statements Required in Certificate or Opinion....... 54
Section 10.06. When Treasury Securities Disregarded................ 55
Section 10.07. Rules by Trustee and Agents......................... 55
Section 10.08. Legal Holidays...................................... 55
Section 10.09. Governing Law....................................... 55
Section 10.10. No Adverse Interpretation of Other Agreements....... 55
Section 10.11. No Recourse Against Others.......................... 55
Section 10.12. Successors.......................................... 56
Section 10.13. Duplicate Originals................................. 56
Section 10.14. Table of Contents, Headings, etc.................... 56
Section 10.15. Acts of Holders..................................... 56
v
ARTICLE XI
MEETINGS OF HOLDERS OF SECURITIES
Section 11.02. Call, Notice and Place of Meetings..................................... 58
Section 11.03. Persons Entitled to Vote at Meetings................................... 59
Section 11.04. Quorum; Action......................................................... 59
Section 11.05. Determination of Voting Rights; Conduct and Adjournment of Meetings.... 60
Section 11.06. Counting Votes and Recording Action of Meetings........................ 61
vi
INDENTURE dated as of between TELE-COMMUNICATIONS,
INC., a Delaware corporation ("Company"), and , a ("Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, bonds or other evidences of indebtedness ("Securities"), to
be issued in one or more series as provided in this Indenture.
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the respective Holders from time to time of
the Securities or of series thereof:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
Additional Amounts means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified
therein and which are owing to such Holders.
Affiliate of any person means any other person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such person.
Agent means any Registrar, co-Registrar, Paying Agent, Conversion
Agent or Exchange Agent. See Section 2.05.
Authenticating Agent means any person authorized by the Trustee
pursuant hereto to act on behalf of the Trustee to authenticate Securities of
one or more series.
Authorized Newspaper means a newspaper, in the English language or in
an official language of the place of publication, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are Legal Holidays in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements in and each case on any day that is a Business Day in the
place of publication.
Bearer Security means any Security which is established pursuant to
this Indenture which is payable to bearer.
Board of Directors means the Board of Directors of the Company or any
authorized committee thereof.
Business Day, except as may otherwise be provided in the form of
Securities of any particular series, means, with respect to any place of payment
or other location, each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a Legal Holiday in such place of payment or other location.
Company means Tele-Communications, Inc., a Delaware corporation, until
a successor replaces it pursuant to the applicable provisions of this Indenture
and thereafter means the successor.
Company Stock means the Tele-Communications, Inc. Common Stock, $1.00
par value, in such series as the same exists on the date of this Indenture or
hereafter and any other capital stock into which such Common Stock may
thereafter have been changed.
coupon means any interest coupon appertaining to a Bearer Security.
Debt means, with respect to any person: (1) any indebtedness of such
person (i) for borrowed money or (ii) evidenced by a note, debenture or similar
instrument (including a purchase money obligation) given in connection with the
acquisition of any property or assets, including securities; (2) any guarantee
by such person of any indebtedness of others described in the preceding clause
(1); and (3) any amendment, renewal, extension or refunding of any such
indebtedness or guarantee.
Default means any event which is, or after notice or passage of time
would be, an Event of Default.
Dollar or $ or U.S. Dollar means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
Foreign Person shall have the meaning given to such term in Section
1.1441-1(c)(2) of the Treasury Regulations.
Government Obligations, with respect to any Security, means (i) direct
obligations of the government or governments which issued the currency in which
the principal of or any interest on such Security or any Additional Amounts in
respect thereof shall be payable, in each case where the payment or payments
thereunder are supported by the full faith and credit of such government or
governments or (ii) obligations of a person controlled or supervised by and
acting as an agency or instrumentality of such government or governments, in
each case where the payment or payments thereunder are unconditionally
guaranteed as a full faith and credit obligation by such government or
governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the
2
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation evidenced
by such depository receipt.
Holder or Securityholder means, when used with respect to any
Security, in the case of a Registered Security the person in whose name the
Security is registered in the security register and in the case of a Bearer
Security the bearer thereof and, when used with respect to any coupon, means the
bearer thereof.
Indenture means this Indenture as amended or supplemented from time to
time and, unless the context indicates otherwise, shall include the form and
terms of a particular series of Securities established as contemplated
hereunder.
interest, when used with respect to an Original Issue Discount
Security which by its terms bears interest only after maturity or upon default
in any other payment due on such Security, means interest payable after maturity
or upon such a default, as the case may be.
Interest Payment Date means the date, if any, specified in the
Securities of any series or a coupon representing an installment of interest as
the fixed date on which an installment of interest on the Securities of that
series or such coupon is due and payable.
Lien means any mortgage, pledge, lien, security interest, or other
similar encumbrance.
Officer means the Chairman of the Board, the President, any Vice
President, the Treasurer or the Secretary of the Company.
Officers' Certificate means a certificate signed by two Officers or by
an Officer and an Assistant Treasurer or an Assistant Secretary of the Company
and delivered to the Trustee. See Sections 10.04 and 10.05.
Opinion of Counsel means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee. See Sections 10.04 and 10.05.
original issue discount of any debt security, including any Original
Issue Discount Security, means the difference between the principal amount of
such debt security and the initial issue price of such debt security (as set
forth, in the case of an Original Issue Discount Security, on the face of such
Security).
Original Issue Discount Security means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon
acceleration of the maturity thereof pursuant to Section 6.02.
3
outstanding, when used with respect to Securities of any series, means
as of the date of determination, all such Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment, redemption or purchase the Trustee
or any Paying Agent (other than the Company) holds in trust or the Company
(acting as its own Paying Agent) has set aside and segregated in trust on a
maturity date, redemption date, Purchase Date or, if so specified with
respect to the Securities of any series pursuant to Section 2.02 on a date
(or, if so specified, on the Business Day following a date) on which
Securities of such series are to be purchased by the Company pursuant to
any provision thereof providing for such purchase at the option of the
Holder or the Company, money (or securities if permitted by the terms of
such Securities) sufficient to pay Securities and any coupons appertaining
thereto payable on that date;
(iii) Securities with respect to which the Company has terminated its
obligations pursuant to Section 8.01 hereof; provided, however, that such
Securities shall continue to be outstanding for all purposes related to
those obligations that survive such termination as provided in Section 8.01
unless and until they cease to be outstanding in accordance with clauses
(i) or (ii) above or clause (iv) below; and
(iv) Securities which have been paid pursuant to Section 2.09 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver or taken any other
action hereunder or whether a quorum is present at a meeting of Holders, and for
the purpose of making the calculations required by TIA (S) 313, (x) 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 6.02,
and (y) the principal amount of a Security denominated in a foreign currency or
currencies or composite currency shall be the U.S. Dollar equivalent, determined
as of the date of original issuance of such Security, of the principal amount of
such Security (or, in the case of an Original Issue Discount Security, the U.S.
Dollar equivalent as of such date of original issuance of such Security of the
amount determined as provided in clause (x) above). Subject to the provisions of
Section 10.06, a Security does not cease to be outstanding because the Company
or one of its Affiliates holds the Security.
4
place of payment means, when used with respect to any Security, the
place or places where, subject to the provisions of Section 4.01, the principal
of, or interest on, or any Additional Amounts with respect to such Security are
payable as specified as contemplated by Section 2.02.
Predecessor Securities means, with respect to any Security, every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security, and, for the purpose of this definition, any
Security authenticated and delivered under Section 2.09 in exchange for or in
lieu of a mutilated, lost, destroyed or wrongfully-taken Security or a Security
to which a mutilated, lost, destroyed or wrongfully-taken coupon appertains
shall be deemed to evidence the same debt as the mutilated, lost, destroyed or
wrongfully-taken Security or the Security to which the mutilated, lost,
destroyed or wrongfully-taken coupon appertains, as the case may be.
principal of a debt security, including any Security, means the amount
(including, without limitation, if and to the extent applicable, any premium
and, in the case of an Original Issue Discount Security, any accrued original
issue discount, but excluding interest) that is payable with respect to such
debt security as of any date and for any purpose (including, without limitation,
in connection with any sinking fund, upon any redemption at the option of the
Company, upon any purchase or exchange at the option of the Company or the
holder of such debt security and upon any acceleration of the maturity of such
debt security).
principal amount of a debt security, including any Security, means the
principal amount as set forth on the face of such debt security.
Registered Security means any Security issued pursuant to this
Indenture which is registered in the security register.
Regular Record Date means the date, if any, specified in the
Registered Securities of any series as the record date for the determination of
Securityholders to whom interest is payable on the next succeeding Interest
Payment Date.
SEC means the Securities and Exchange Commission.
Securities means the Securities that are issued from time to time in
one or more series under this Indenture as such Securities are amended or
supplemented from time to time.
Subsidiary means any corporation, association, partnership or other
business entity of which a majority of the total voting power of the capital
stock or other interests (including partnership interests) entitled (without
regard to the occurrence of a contingency) to vote in the election of directors,
managers, or trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) the Company, (ii) the Company and one or more of its
Subsidiaries or (iii) one or more Subsidiaries of the Company.
TIA means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)77aaa-
77bbbb) as in effect on the date of this Indenture, except as provided in
Section 9.03.
5
Trustee means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor and if at any time
there is more than one such party, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
Trust Officer means any officer or assistant officer in the corporate
trust department of the Trustee assigned by the Trustee to administer its
corporate trust matters.
United States, except as otherwise provided in or pursuant to this
Indenture, means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
Section 1.02. Other Definitions.
TERM DEFINED IN SECTION
Act 10.15
Bankruptcy Law 6.01
Code 9.01
Conversion Agent 2.05
Custodian 6.01
Event of Default 6.01
Exchange Agent 2.05
Legal Holiday 10.08
Paying Agent 2.05
Registrar 2.05
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
Commission means the SEC.
indenture securities means the Securities.
indenture security holder means a Securityholder.
6
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on the indenture securities means the Company and any other
obligor thereon.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in effect
on the date of this Indenture;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and in the plural
include the singular.
ARTICLE II
THE SECURITIES
Section 2.01. Forms Generally.
The Securities of each series may be issued as Registered Securities
without coupons attached, or Bearer Securities with or without coupons attached,
or both, and may be issued in whole or in part in the form of one or more global
Securities as shall be specified as contemplated by Section 2.02. In the absence
of any contrary provisions with respect to the Securities of any series, the
Securities shall be issued as Registered Securities and shall not be issuable
upon the exercise of warrants. Bearer Securities shall be issued with coupons
attached unless otherwise provided with respect to the Securities of any series
as contemplated by Section 2.02.
The Securities of each series (including any temporary global
Securities) and related coupons, if any, shall be in one of the forms
established from time to time by or pursuant to a resolution of the Board of
Directors or in or pursuant to one or more indentures supplemental hereto, which
shall set forth the information required by Section 2.02. The Securities and
coupons, if any, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or by a resolution of the Board of Directors and may have such
notations, legends or endorsements as the Company may deem appropriate and as
are not
7
inconsistent with the provisions of this Indenture, or as may be required by
law, stock exchange rule or usage. The Company shall approve the form or forms
of Securities and any coupons appertaining thereto and any notation, legend or
endorsement on them. If the form or forms of Securities of any series or coupons
are established by action taken pursuant to a resolution of the Board of
Directors or indenture supplemental hereto, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the written
order of the Company contemplated by Section 2.04 for the authentication and
delivery of such Securities or coupons.
Subject to Section 2.05, the form of the Trustee's certificate of
authentication to be borne by the Securities shall be substantially as follows:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
, as Trustee
By________________________________
Authorized Signatory
Section 2.02. 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 resolution of the Board of Directors or
established in or pursuant to one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of Securities of the series (which shall distinguish
Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of Securities of
the series which 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 Sections 2.08, 2.09, 2.11, 3.07 or 9.05 and except for
any Securities which pursuant to Section 2.04 are deemed not to have been
authenticated and delivered hereunder);
(3) (A) whether Securities of the series are issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities and
Registered Securities, and whether the Bearer Securities are to be issuable
with coupons, without coupons or both; (B) any restrictions applicable to
the offer, sale or delivery of Bearer Securities and the terms upon which
Bearer Securities of the series may be exchanged for Registered Securities
of the
8
series and vice versa (if permitted by applicable laws and regulations);
(C) whether any of the Securities of the series are to be issuable in
global form and, if so, (i) the identity of the depositary with respect to
any such global Security and (ii) whether beneficial owners of interests in
any such global Security may exchange such interests for Securities of the
same series and of like tenor and of any authorized form and denomination,
and, if so, the circumstances under which and the manner in which any such
exchanges may occur, if other than as specified in Section 2.08; (D) if any
of the Securities of the series are to be issuable as Bearer Securities or
in global form, the date as of which any such Bearer Security or global
Security shall be dated (if other than the date of original issuance of the
first of such Securities to be issued); and (E) if Securities of the series
are to be issuable in definitive form (whether upon original issue, upon
exchange of a temporary Security of such series, or in exchange for a
beneficial ownership interest in a permanent global Security) only upon
receipt of certain certificates or other documents or satisfaction of other
conditions, or if Securities of the series are initially issuable in
temporary global form and if owners of beneficial interests therein may
exchange such interest for an interest in a permanent global Security only
upon receipt of certain certificates or other documents or satisfaction of
other conditions, then the form and/or terms of such certificates,
documents or conditions;
(4) (A) the person to whom any interest on any Registered Security of
the series shall be payable, if other than the person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest; (B) the manner in
which, or the person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature; and (C) if
any Securities of the series are to be issuable as Bearer Securities, the
extent to which, or the manner in which, and the terms and conditions
(including certification requirements) upon which, any interest in respect
of any portion of a temporary Bearer Security in global form payable in
respect of an Interest Payment Date prior to the exchange of such temporary
global Security for a permanent global Security or for definitive
Securities of the series will be paid to any clearing organization with
respect to the portion of such temporary global Security held for its
account and, in such event, the terms and conditions (including
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the persons entitled to
interest payable on such Interest Payment Date, and any other requirements
in addition to or in lieu of those provided herein relating to the payment
of interest on or any Additional Amounts in respect of Bearer Securities;
(5) the date or dates (and whether fixed or extendible) on which the
principal of Securities of the series is payable;
(6) the rate or rates at which Securities of the series shall bear
interest, or the method of determining the same, if any, the date or dates
from which such interest shall accrue, or the method of determining the
same, if any, the Interest Payment Dates on which any such interest shall
be payable and the Regular Record Date for any interest payable on
9
any Registered Securities on any Interest Payment Date, whether and under
what circumstances Additional Amounts on Securities of the series or any of
them shall be payable, and the basis upon which interest will be calculated
if other than that of a 360-day year of twelve 30-day months;
(7) the place or places where, subject to Section 4.01, the principal
of, any interest on or any Additional Amounts payable in respect of
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, any Securities of
the series may be surrendered for exchange and notices and demands to or
upon the Company in respect of the Securities of the series and this
Indenture may be served;
(8) any provisions relating to the issuance of Securities of such
series at an original issue discount (including, without limitation, the
issue price thereof, the rate or rates at which such original issue
discount shall accrue, if any, and the date or dates from or to which or
period or periods during which such original issue discount shall accrue at
such rate or rates);
(9) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed or otherwise purchased, in whole or in part, at the option of the
Company, pursuant to any sinking fund or otherwise (including, without
limitation, the form or method of payment thereof if other than in cash);
(10) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Securityholder 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 (including,
without limitation, the form or method of payment thereof if other than in
cash);
(11) the currency or currencies, including composite currencies, in
which payment of the principal of, any interest on and any Additional
Amounts payable in respect of the Securities of the series shall be
payable, or in which the Securities of the series shall be denominated, if
other than Dollars;
(12) if the principal of, any interest on or any Additional Amounts
payable in respect of the Securities of the series is to be payable, at the
election of the Company or a Securityholder, in a currency or currencies,
including composite currencies, other than that in which the Securities of
such series are denominated or stated to be payable, the terms and
conditions upon which such election may be made and the method for
determining amounts payable;
10
(13) if the amount of payments of principal of or interest on the
Securities of the series may be determined with reference to an index,
formula or other method or methods (which index, formula, method or methods
may be based, without limitation, on one or more currencies, commodities,
equity indices or other indices), the terms and conditions upon which and
the manner in which such amounts shall be determined and paid or payable;
(14) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which Bearer Securities
of the series shall be issuable if other than denominations of $5,000;
(15) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
acceleration of the maturity thereof pursuant to Section 6.02 or provable
in bankruptcy pursuant to Section 6.09, or, if applicable, which is
convertible or exchangeable;
(16) any Events of Default with respect to the Securities of a
particular series in lieu of or in addition to those set forth herein and
the remedies therefor;
(17) the obligation, if any, of the Company to permit the conversion
of Securities of such series into Company Stock and the terms and
conditions upon which such conversion shall be effected (including, without
limitation, the initial conversion price or rate, adjustments to the
conversion price or rate, the conversion period and any other provision
relative to such obligation);
(18) the obligation, if any, of the Company to permit the exchange of
Securities of such series into other securities (whether or not issued by,
or the obligation of, the Company) or a combination of cash, other
securities and/or property, and the terms and conditions upon which such
exchanges shall be effected (including, without limitation, the initial
exchange price or rate, adjustments to the exchange price or rate, the
exchange period and any other provision relative to such obligation);
(19) if any Securities of the series are to be issuable upon the
exercise of warrants, this shall be so established and (if established by
resolution of the Board of Directors) so set forth, as well as the time,
manner and place for such Securities to be authenticated and delivered;
(20) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Registrar, Paying Agent,
Conversion Agent or Exchange Agent with respect to the Securities of the
series; and
(21) whether, and the terms and conditions relating to when, the
Company may satisfy certain of its obligations with respect to such
Securities with regard to payment upon
11
maturity, or any redemption or required repurchase, or in connection with
any exchange provisions by delivery to the Holders thereof securities
(whether or not issued by, or the obligation of, the Company) or a
combination of cash, other securities and/or property.
(22) any other terms of a particular series including any terms which
may be required by or advisable under United States or applicable foreign
laws or regulations or advisable in connection with the marketing or
remarketing of Securities of that series, and any other provisions
expressing or referring to the terms and conditions upon which the
Securities of that series are to be issued under this Indenture, which
terms and provisions are not in conflict with the provisions of this
Indenture; provided, however, that the addition to or subtraction from or
variation of Articles IV, V, VI and VIII (and Sections 1.01 and 1.02,
insofar as they relate to the definition of certain terms as used in such
Articles) with regard to the Securities of a particular series shall not be
deemed to constitute a conflict with the provisions of those Articles.
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such resolution of the Board of Directors or in any
such indenture supplemental hereto. Not all Securities of any one series need be
issued at the same time, and, unless otherwise so provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the Securities of a series are established by action
taken pursuant to a resolution of the Board of Directors or indenture
supplemental hereto, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee with an Officers' Certificate setting forth the terms
or the manner of determining the terms of the Securities of such series. With
respect to Securities of a series which are not to be issued at one time, such
resolution of the Board of Directors or action may provide general terms or
parameters for Securities of such series and provide either that the specific
terms of particular Securities of such series shall be specified in a written
order of the Company or that such terms shall be determined by the Company or
its agents in accordance with a written order of the Company as contemplated by
the last sentence of the fourth paragraph of Section 2.04.
Section 2.03. Denominations.
Unless otherwise provided as contemplated by Section 2.02 with respect to
any series of Securities and except as provided in Section 2.10, any Registered
Securities of a series denominated in Dollars shall be issuable in denominations
of $1,000 and any integral multiple thereof and any Bearer Securities of a
series denominated in Dollars shall be issuable in the denomination of $5,000.
12
Section 2.04. Execution, Authentication, Delivery and Dating.
Two Officers shall sign the Securities for the Company. The Company's seal
shall be reproduced on the Securities. An Officer shall sign the coupons
attached to any Bearer Security for the Company. The signature of any Officer on
the Securities or any coupons appertaining thereto may be manual or facsimile.
If an Officer whose signature is on a Security or a coupon no longer holds
that office at the time the Trustee authenticates such Security, the Security
and coupon shall be valid nevertheless.
A Security or coupon shall not be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose until the certificate of
authentication on the Security is manually signed by the Trustee or on its
behalf by an Authenticating Agent. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture. Notwithstanding
the foregoing, if any Security shall have been duly authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
2.12 together with a written statement (which need not comply with Sections
10.04 and 10.05 and need not be accompanied by an Opinion of Counsel) stating
that such Security has not been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed not to have been authenticated
and delivered hereunder and shall not be entitled to the benefits of this
Indenture.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series together with any
coupon appertaining thereto executed by the Company to the Trustee for
authentication, and the Trustee shall, subject to the provisions hereof and of
such Securities, authenticate said Securities and deliver said Securities and
any coupons appertaining thereto to or upon the written order of the Company,
signed by two Officers or by an Officer and an Assistant Treasurer of the
Company, without any further action by the Company. Unless otherwise specified
as contemplated by Section 2.02, no Bearer Security shall be mailed or otherwise
delivered to any location in the United States. Further, a Bearer Security
(including a permanent global Bearer Security) may be delivered only if all
applicable certifications and other requirements specified as contemplated by
Section 2.02 with respect to the Securities of or within such series have been
satisfied with respect to such Bearer Security (or, if applicable, a Predecessor
Security). Except as permitted by Section 2.09, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. If not all the
Securities of a series are to be issued at one time and if the resolution of the
Board of Directors or indenture supplemental hereto establishing such series as
contemplated by Sections 2.01 and 2.02 shall so permit, the written order of the
Company may set forth procedures acceptable to the Trustee for the issuance of
such Securities and for determining the form of terms of particular Securities
of such series including, but not limited to, interest rate, maturity date, date
of issuance and date from which interest shall accrue.
13
If the form or forms or terms of Securities of the series and any related
coupons have been established in or pursuant to one or more resolutions of the
Board of Directors or indentures supplemental hereto as permitted by Sections
2.01 and 2.02, 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 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form or forms of such Securities and any coupons have been
established by or pursuant to a resolution of the Board of Directors or
indenture supplemental hereto, that such form or forms have been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a resolution of the Board of Directors or
indenture supplemental hereto, that such terms have been established in
conformity with the provisions of this Indenture; and
(3) that such Securities together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights, to general equitable principles and to such other
qualifications as such counsel shall conclude do not materially affect the
rights of Holders of such Securities and any coupons;
provided, however, that, with respect to Securities of a series which are not to
be issued at one time, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the opinions described in clauses (2) and (3)
above may state, respectively,
(a) that, when the terms of such Securities and any coupons shall
have been established pursuant to a written order of the Company or
pursuant to such procedures as may be specified from time to time by a
written order of the Company, all as contemplated by and in accordance with
a resolution of the Board of Directors or an Officers' Certificate pursuant
to a resolution of the Board of Directors or indenture supplemental hereto,
as the case may be, such terms will have been established in conformity
with the provisions of this Indenture; and
(b) that such Securities and any coupons appertaining thereto, when
(i) executed by the Company, (ii) completed, authenticated and delivered by
the Trustee in accordance with this Indenture, (iii) issued and delivered
by the Company and (iv) paid for, all as contemplated by and in accordance
with the aforesaid written order of the Company or specified procedures, as
the case may be, and in the manner and subject to any conditions
14
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights, to general equitable
principles and to such other qualifications as such counsel shall conclude
do not materially affect the rights of Holders of such Securities and any
coupons.
Notwithstanding the provisions of Sections 2.01, 2.02, 10.04 and this
Section, if all the Securities of a series are not to be originally issued at
one time, the resolution of the Board of Directors or indenture supplemental
hereto, the certified copy of the record of action taken pursuant to such
resolution or supplemental indenture, the Officers' Certificate, the written
order of the Company and any other documents otherwise required pursuant to such
Sections need not be delivered at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be
issued, provided, however, that any subsequent request by the Company to the
Trustee to authenticate Securities of such series shall constitute a
representation and warranty by the Company that as of the date of such request,
the statements made in the Officers' Certificate delivered pursuant to Section
10.04 at or prior to authentication of the first such Security shall be true and
correct on the date thereof as if made on and as of the date thereof.
The Trustee shall have the right to decline to authenticate and make
available for delivery any Securities together with any coupons appertaining
thereto under this Section if the issuance of such Securities pursuant to this
Indenture will alter the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
With respect to Securities of a series which are not all issued at one
time, the Trustee may conclusively rely, as to the authorization by the Company
of any of such Securities and any coupons, the form and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon the Opinion
of Counsel, Officers' Certificate and other documents delivered pursuant to
Sections 2.01, 2.02, 10.04 and this Section, as applicable, at or prior to the
time of the first authentication of Securities of such series unless and until
such opinion, certificate or other documents have been superseded or revoked. In
connection with the authentication and delivery of Securities of a series and
any coupons which are not all issued at one time, the Trustee shall be entitled
to assume that the Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or orders of any governmental
agency or commission having jurisdiction over the Company.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security (including any temporary Bearer Security in global form)
shall be dated as of the date specified as contemplated by Section 2.02.
15
Section 2.05. Registrar, Paying Agent, Conversion Agent and Authenticating
Agent.
The Company shall maintain an office or agency where Registered Securities
of each series may be presented for registration of transfer or for exchange
("Registrar"), an office or agency where Securities of each series may be
presented for payment ("Paying Agent"), an office or agency where Securities of
each series that is convertible may be presented for conversion ("Conversion
Agent") and an office or agency where Securities of each series that is
exchangeable may be presented for exchange ("Exchange Agent") and (but without
duplication) such offices or agencies in such locations and for such purposes as
may be required as contemplated by Section 4.01. The Registrar shall keep a
register of the Registered Securities of each series issued hereunder and of
their transfer and exchange. The Company may have one or more co-Registrars
(provided that there shall be only one register, which shall be maintained by
the principal Registrar), one or more additional paying agents one or more
additional conversion agents and one or more additional exchange agents with
respect to any series. The term "Paying Agent" includes any additional paying
agent, the term "Conversion Agent" includes any additional conversion agent and
the term "Exchange Agent" includes any additional exchange agent.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall promptly notify the
Trustee of the name and address of any such Agent. If the Company fails to
maintain a Registrar, Paying Agent, Conversion Agent or Exchange Agent, the
Trustee shall act as such.
The Company initially appoints the Trustee Registrar and Paying Agent for
each series and Conversion Agent for any series that is convertible and Exchange
Agent for any series that is exchangeable.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
or upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 2.09 and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually pursuant
to law or to the requirements of said supervising or examining authority, then,
for the purposes of this Section, the combined capital and
16
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in the case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve in the manner and to the extent
provided in Section 10.02. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment of an Authenticating Agent with respect to one or more
series is made pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
17
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in
the within-mentioned Indenture.
, as Trustee
By:_____________________________
As Authenticating Agent
By:_____________________________
Authorized Signatory
Section 2.06. Paying Agent to Hold Money and Securities in Trust.
Prior to each due date of a principal payment in respect of any Security,
the Company shall deposit with the Paying Agent a sum of money or securities
sufficient to make such payment when so becoming due. Each Paying Agent shall
hold in trust for the benefit of Securityholders of the relevant series or the
Trustee all money and securities held by the Paying Agent for the payment of any
amount in respect of the Securities of such series, and shall notify the Trustee
of any default by the Company in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate such money and securities
and hold them as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money and securities held by it to the Trustee and
account for any funds or securities disbursed. Upon doing so, the Paying Agent
shall have no further liability for the money or securities.
Section 2.07. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before either (1) April 1 and October 1 in each year in the
case of Original Issue Discount Securities of any series which by their terms do
not bear interest prior to maturity (other than upon a default in any payment
upon such a Security) or (2) the Interest Payment Date for Securities of any
other series, but in no event less frequently than semi-annually, and at such
other times as the Trustee may request in writing a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of
Securityholders included in the security register.
Section 2.08. Transfer and Exchange.
Upon presentation for registration of transfer of a Registered Security of
any series at the office or agency of the Company maintained for such purposes
in a place of payment for such series,
18
the Company shall execute and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously outstanding
and containing identical terms and provisions. Notwithstanding any other
provision of this Section, unless and until it is exchanged in whole or in part
for Securities in definitive form, a global Security representing all or a
portion of the Securities of or within a series may not be transferred except as
a whole by the depositary for such series to a nominee of such depositary or by
a nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor depositary
for such series or a nominee of such successor depositary.
At the option of the Holder, Registered Securities of any series (other
than a global Security, except as provided below or as otherwise specified as
contemplated by Section 2.02) may be exchanged for other Registered Securities
of the same series of any authorized denominations and of a like aggregate
principal amount and containing identical terms and provisions, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. Unless otherwise specified with respect to
any series of Securities as contemplated by Section 2.02, Bearer Securities may
not be delivered by the Trustee in exchange for Registered Securities.
If so provided pursuant to Section 2.02 with respect to the Securities of
any series, at the option of the Holder, Bearer Securities of such series (other
than a global Security, except as provided below or as otherwise specified as
contemplated by Section 2.02) may be exchanged for Registered Securities of such
series containing identical terms of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any office or agency maintained by the Company for such purpose in
a place of payment for such series, with all unmatured coupons and all matured
coupons in default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any unmatured coupon or coupons or matured coupon or coupons
in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment, provided, however, that, except as otherwise
provided in Section 4.01, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency for such
series in exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency (i) on any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) on any special record date and before the opening
of business at such
19
office or agency on the related date for payment of defaulted interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be, and
interest or defaulted interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date of payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon in accordance with the
provisions of this Indenture.
Whenever any Securities are so surrendered for exchange pursuant to the
immediately preceding paragraph, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
Except as otherwise provided with respect to the Securities of any series
as contemplated by Section 2.02, a global Security may be exchanged only as
provided below in this Section.
If at any time the depositary with respect to a global Security
representing all or a portion of the Securities of or within a series notifies
the Company that it is unwilling, unable or ineligible to continue as such
depositary, the Company shall appoint a successor depositary with respect to
such Securities. Unless otherwise provided with respect to a series of
Securities as contemplated by Section 2.02, if a successor depositary is not so
appointed by the Company within 90 days after the Company receives such notice,
the Company will execute and the Trustee, upon receipt of a written order of the
Company as contemplated by Section 2.04 for the authentication and delivery of
definitive Securities of such series (or, if such written order has previously
been delivered, then upon receipt of written instructions from the person or
persons specified in such written order), will authenticate and deliver
Securities of such series in definitive form equal in aggregate principal amount
to the principal amount of the global Security or Securities representing such
series in exchange for such global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute and the Trustee, upon receipt of a written order
of the Company as contemplated by Section 2.04 for the authentication and
delivery of definitive Securities of such series (or, if such written order has
previously been delivered, then upon receipt of written instructions from the
person or persons specified in such written order), will authenticate and
deliver Securities of such series in definitive form equal in aggregate
principal amount to the principal amount of the global Security or Securities
representing such series in exchange for such global Security or Securities.
If a global Security is otherwise exchangeable as specified by the Company
pursuant to Section 2.02(3) with respect to a series of Securities, the
depositary with respect to a global Security representing all or a portion of
the Securities of or within such series may surrender such global Security to
the Trustee, as the Company's agent for such purpose, to be exchanged in whole
or in part for Securities of such series in definitive form in the manner and
under the circumstances so specified and on such terms as are acceptable to the
Company and such depositary. In such event,
20
the Company shall execute and the Trustee shall authenticate and deliver or make
available for delivery:
(i) to each person specified by such depositary a new Security or
Securities of the same series and of like tenor, of any authorized form and
denomination as requested by such person in aggregate principal amount
equal to and in exchange for such person's beneficial interest in the
global Security; and
(ii) unless endorsement of the surrendered global Security as
contemplated by Section 2.10 or another procedure is specified for the
Securities of such series as contemplated by Section 2.02, to such
depositary a new global Security in a denomination equal to the difference,
if any, between the principal amount of the surrendered global Security and
the aggregate principal amount of Securities delivered pursuant to clause
(i) above in exchange for beneficial interests in such surrendered global
Security.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Securities
(a) in definitive registered form in authorized denominations if the Securities
of such series are issuable as Registered Securities, (b) in definitive bearer
form in authorized denominations if the Securities of such series are issuable
as Bearer Securities or (c) as either Registered or Bearer Securities, if the
Securities of such series are issuable in either form; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a portion of a
global Security except in compliance with the conditions set forth in Section
2.04 or specified with respect to the Securities of such series as contemplated
by Section 2.02 (including certification requirements and requirements with
respect to delivery outside the United States).
Upon the exchange of a global Security for Securities in definitive form,
such global Security shall be canceled by the Trustee, unless endorsement of the
surrendered global Security as contemplated by Section 2.10 or another
procedure is specified for the Securities of such series as contemplated by
Section 2.02. Registered Securities issued in exchange for a global Security
pursuant to this Section shall be registered in such names and in such
authorized denominations as the depositary for such global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Registered Securities to
the persons in whose names such Securities are so registered. Subject to the
proviso clause of the immediately preceding paragraph, the Trustee shall deliver
Bearer Securities issued in exchange for a global Security pursuant to this
Section to the persons, and in such authorized denominations, as the depositary
for such global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee.
If a Registered 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 (i) on any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) on any special
record date and before the opening of business at such office or agency on the
21
related date for payment of defaulted interest, interest or defaulted interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the person to whom interest in respect of
such portion of such global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar
duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the date of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the date of the first publication of the relevant notice
of redemption or, if Securities of such series are also issuable as Registered
Securities and there is no publication, the date of the mailing of the relevant
notice of redemption. Further, the Company shall not be required to register the
transfer of or exchange any Security selected for redemption or purchase
(except, in the case of Securities to be redeemed or purchased in part, the
portion thereof not to be redeemed or purchased), and the Company shall not be
required to issue, register the transfer of or exchange any Security in respect
of which a notice requiring the purchase or redemption thereof by the Company at
the option of the Holder has been given and not withdrawn by the Holder thereof
in accordance with the terms of such Securities (except, in the case of
Securities to be so purchased or redeemed in part, the portion thereof not to be
so purchased or redeemed); provided, however, that a Bearer Security so selected
for redemption or purchase or in respect of which a notice requiring the
purchase or redemption thereof by the Company at the option of the Holder has
been given and not so withdrawn may, if so provided with respect to the
Securities of such series as contemplated by Section 2.02, be exchanged for a
Registered Security of that series and like tenor, provided that such Registered
Security shall simultaneously be surrendered for redemption or purchase, as the
case may be, with written instructions for payment consistent with the
provisions of this Indenture.
22
Section 2.09. Replacement Securities.
If (i) a mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or (ii) the Company and the
Trustee receive evidence to their satisfaction that a Security or coupon
appertaining thereto has been lost, destroyed or wrongfully taken, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them and any Agent harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, and if the Trustee's requirements are
met, the Company shall execute and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or
Security with a mutilated coupon appertaining to it or to which a lost,
destroyed or wrongfully-taken coupon appertains (with all appurtenant coupons
not lost, destroyed or wrongfully taken) or in lieu of any such lost, destroyed
or wrongfully taken Security, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security or to the lost, destroyed or
wrongfully-taken Security or to the Security to which such lost, destroyed or
wrongfully-taken coupon appertains, as applicable, provided, however, that
delivery of a Bearer Security shall occur only outside the United States.
In case any such mutilated, lost, destroyed or wrongfully-taken Security or
coupon has become or is about to become due and payable, or is about to be
purchased by the Company pursuant to any provision of the Securities of such
series providing for the purchase thereof at the option of the Holder or the
Company, the Company in its discretion may, instead of issuing a new Security,
pay or purchase such Security or pay such coupon, as applicable; provided,
however, that payment of principal of, any interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 4.01, be payable only at an office or agency for Securities of such
series located outside the United States and, unless otherwise provided in or
pursuant to this Indenture, any interest on Bearer Securities and any Additional
Amounts with respect to such interest shall be payable only upon presentation
and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security, with any coupons appertaining thereto, issued pursuant
to this Section in lieu of any lost, destroyed or wrongfully-taken Security, or
in exchange for a Security to which a lost, destroyed or wrongfully-taken coupon
appertains, shall constitute a separate obligation of the Company, whether or
not the lost, destroyed or wrongfully-taken Security and coupons appertaining
thereto or the lost, destroyed or wrongfully-taken coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of such
series and any coupons, if any, duly issued hereunder.
23
The provisions of this Section, as amended or supplemented pursuant to this
Indenture with respect to particular Securities or generally, shall be exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, lost, destroyed or
wrongfully-taken Securities or coupons.
Section 2.10. Securities in Global Form.
If the Company shall establish pursuant to Section 2.02 that the Securities
of or within a series are to be issued in whole or in part in global form, then
the Company shall execute, and the Trustee shall, in accordance with Section
2.04 and the written order of the Company contemplated thereby, authenticate and
deliver one or more global Securities in temporary or permanent form that (i)
shall be registered, if in registered form, in the name of the depositary for
such global Security or Securities or the nominee of such depositary, (ii) shall
be delivered by the Trustee to such depositary or pursuant to such depositary's
instructions, and (iii) shall bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
depositary to a nominee of the depositary or by a nominee of the depositary to
the depositary or another nominee of the depositary or by the depositary or any
such nominee to a successor depositary or a nominee of such successor
depositary." Each depositary designated pursuant to Section 2.02 for a global
Security in registered form must be, to the extent required by applicable law or
regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and any other applicable statute or regulation, at the time of
its designation and at all times that it serves as depositary. Notwithstanding
clause (14) of Section 2.02 and the provisions of Section 2.03, any such global
Security shall represent such of the outstanding Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate
amount of outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of outstanding Securities represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
outstanding Securities represented thereby shall be made in such manner and upon
instructions given by such person or persons as shall be specified therein or in
the written order of the Company to be delivered to the Trustee pursuant to
Section 2.04. Subject to the provisions of Section 2.04 and, if applicable,
Section 2.11, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the person or persons
specified therein or in the applicable written order of the Company. If a
written order of the Company pursuant to Section 2.04 has been, or
simultaneously is, delivered, any instructions with respect to a Security in
global form shall be in writing but need not comply with Sections 10.04 and
10.05 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of the third paragraph of Section 2.04
shall apply to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Security in global form together with written instructions
(which need not comply with Sections 10.04 and 10.05 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount
of Securities
24
represented thereby, together with the written statement contemplated by the
last sentence of the third paragraph of Section 2.04.
Section 2.11. Temporary Securities.
Pending the preparation of a permanent global Security or definitive
Securities of any series, the Company may execute and the Trustee, upon the
written order of the Company pursuant to Section 2.04, shall authenticate and
deliver temporary Securities. Temporary Securities of any series shall be in
authorized denominations and substantially of the tenor of the definitive
Securities of that series in lieu of which they are issued, in registered form
or, if authorized, in bearer form with one or more coupons or without coupons,
but may have variations that the Company considers appropriate for temporary
Securities. In the case of Securities of any series, such temporary Securities
may be in global form. If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be prepared without
unreasonable delay. Except as otherwise specified as contemplated by Section
2.02 with respect to Securities of a series issuable as Bearer Securities, (a)
after the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company maintained for such purpose in a place of
payment for such series, without charge to the Holder, and (b) upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured coupons appertaining thereto) the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like aggregate principal amount of definitive Securities of authorized
denominations of the same series and containing identical terms and provisions;
provided, however, that, unless otherwise specified as contemplated by Section
2.02, no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security and provided, further, that neither a beneficial
interest in a permanent global Security in bearer form nor a definitive Bearer
Security shall be delivered in exchange for a temporary Security except in
compliance with all applicable conditions set forth in Section 2.04 or specified
as contemplated by Section 2.02 (including certification requirements and
requirements with respect to delivery outside the United States). Until so
exchanged, the temporary Securities of any series shall, except as otherwise
specified as contemplated by Section 2.02 (including with respect to the payment
of interest on temporary Securities), in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and of
like tenor authenticated and delivered hereunder.
Section 2.12. Cancellation.
The Company at any time may deliver Securities and all coupons, if any,
appertaining thereto to the Trustee (or to another person for delivery to the
Trustee) for cancellation, including Securities authenticated which the Company
has not issued and sold. The Company and each Agent shall forward to the Trustee
for cancellation any Securities and coupons surrendered to them for transfer,
exchange, payment, redemption, purchase by the Company pursuant to any provision
thereof providing for such purchase at the option of the Holder, or conversion.
The Trustee and no one else shall cancel all Securities and coupons surrendered
for transfer, exchange, payment, redemption,
25
purchase, conversion or cancellation, and may dispose of canceled Securities and
coupons as the Company directs, provided, however, that the Trustee shall not be
required to destroy such canceled Securities. Except as otherwise provided in
the resolution of the Board of Directors or indenture supplemental hereto
establishing such series as contemplated by Section 2.02, the Company may not
issue new Securities of a series to replace Securities of the same series that
it has paid or that have been delivered to the Trustee for cancellation.
Section 2.13. Payment of Interest; Defaulted Interest.
Unless otherwise provided with respect to the Securities of any series as
contemplated by Section 2.02, interest (except defaulted interest) on any
Registered Security of any series which is payable on any Interest Payment Date
shall be paid to the Holder in whose name that Security (or one or more
Predecessor Securities) is registered on the security register at the close of
business on the Regular Record Date for such interest payment. At the option of
the Company, payment of interest on any Registered Security may be made (i) by
check mailed to the address of the person entitled thereto as such address
appears in the security register, or (ii) if so specified with respect to the
Securities of such series as contemplated by Section 2.02, by wire transfer to
an account designated by such person.
Unless otherwise provided with respect to the Securities of any series as
contemplated by Section 2.02, if the Company defaults in a payment of interest
on the Registered Securities of any series on any Interest Payment Date, it
shall pay the defaulted interest to the persons who are Securityholders of such
series at the close of business on a subsequent special record date. The
Company shall fix the record date and payment date. At least 15 days before the
record date, the Company shall mail to each Securityholder of such series a
notice that states the record date, the payment date and the amount of defaulted
interest to be paid. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Paying Agent an amount of money equal to the
aggregate amount proposed to be paid in respect of such defaulted interest or
shall make arrangements satisfactory to the Paying Agent for such deposit prior
to the date of the proposed payment. The Company may pay defaulted interest in
any other lawful manner.
Unless otherwise provided with respect to the Registered Securities of any
series as contemplated by Section 2.02, in the case of any Registered Security
of any series which is converted after any Regular Record Date and on or prior
to the next succeeding Interest Payment Date (other than any Registered Security
which is due and payable prior to such Interest Payment Date), interest which is
due and payable on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion, and such interest shall be paid to
the Holder in whose name that Registered Security is registered at the close of
business on such Regular Record Date.
26
If any Bearer Security of a series is surrendered in exchange for a
Registered Security of such series at an office or agency maintained by the
Company for such purpose in a place of payment for such series after the close
of business at such office or agency (i) on any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date or (ii) on any special record date and before the opening of
business at such office or agency on the related date for payment of defaulted
interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date of payment, as the case may be,
and interest or defaulted interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date of payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Unless otherwise specified with respect
to the Securities of any series pursuant to Section 2.02, any interest due on
any Bearer Security on or before the maturity thereof, and any Additional
Amounts payable with respect to such interest, shall be payable only upon
presentation of the coupons appertaining thereto for such interest as they
severally mature. Unless otherwise specified with respect to the Securities of
any series pursuant to Section 2.02, at the option of the Company, payment of
interest on any Bearer Security may be made by check (provided the same is not
mailed to an address inside the United States) or by wire transfer to an account
located outside the United States maintained by the payee.
Section 2.14. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of, and (subject to Sections 2.08 and 2.13) interest on and any
Additional Amounts with respect to, such Registered Security and for all other
purposes whatsoever, whether or not any payment with respect to such Registered
Security shall be overdue, and neither the Company, nor the Trustee or any agent
of the Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security or the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and all other purposes whatsoever, whether
or not any payment with respect to such Security or coupon shall be overdue, and
neither the Company, nor the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a depositary shall have any rights under this Indenture with respect
to such global Security, and such depositary (or its nominee, if such global
Security is in registered form and is registered in the name of a nominee) may
be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such global Security for all purposes whatsoever;
provided, however, that, if so
27
specified as contemplated by Section 2.02, the Company, the Trustee and any
agent of the Company or the Trustee shall, to the extent so specified, treat the
clearing organization or organizations for whose account a portion of a
permanent global Security in bearer form is held by the depositary thereof as
the owner of the applicable portion of such global Security. None of the
Company, the Trustee, any Paying Agent or the Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
Section 2.15. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if the Company does so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any changes in the "CUSIP" numbers.
ARTICLE III
REDEMPTION
Section 3.01. Applicability of Article.
Securities of any series which are redeemable before their stated maturity
at the election of the Company or through the operation of any sinking fund for
the retirement of Securities of such series shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
2.02 for Securities of any series) in accordance with this Article.
Section 3.02. Notices to Trustee.
If the Company elects to redeem all or less than all the Securities of any
series, it shall notify the Trustee of the redemption date, the principal amount
of Securities to be redeemed, the specific provision of the Securities pursuant
to which the Securities being called for redemption are being redeemed and the
redemption price. In the case of any redemption of Securities prior to the
28
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction. If
the Company wants to make any permitted optional sinking fund payment, it shall
notify the Trustee of the principal amount of the Securities to be redeemed.
The Company (1) may deliver outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which (i) have been redeemed or
otherwise purchased either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities or (ii) have been converted
pursuant to the terms of such Securities, in each case in satisfaction of all or
any part of any sinking fund payment required to be made pursuant to the terms
of the Securities of such series as provided for by the terms of such series;
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
redemption price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. The Company shall notify the Trustee of its intention to so reduce
the amount of such sinking fund payment, the amount of the reduction and the
basis for it. The Company shall deliver to the Trustee with such notice any
Securities to be credited for such purpose that it has not previously delivered
to the Trustee for cancellation.
The Company shall give each notice and Officers' Certificate provided for
in this Section at least 60 days before the redemption date (unless a shorter
notice shall be satisfactory to the Trustee or is otherwise specified as
contemplated by Section 2.02 for Securities of any series).
Section 3.03. Selection of Securities to be Redeemed.
Except as otherwise specified as contemplated by Section 2.02 for
Securities of any series, if less than all the Securities of any series are to
be redeemed, the particular Securities to be redeemed shall be selected from
Securities of the same series outstanding not previously called for redemption
by lot or by such method as the Trustee considers fair and appropriate (and in
such manner as complies with applicable requirements of any stock exchange on
which Securities of such series are listed) and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series that have denominations larger
than the minimum authorized denomination for Securities of that series.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. If any Security selected
for partial redemption is converted in part after such selection but before the
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed (so far as
may be practicable) to be the portion selected for redemption.
29
Section 3.04. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date (unless
a shorter notice is specified as contemplated by Section 2.02 for the Securities
of any series), the Company shall provide a notice of redemption in the manner
provided in Section 11.02 to the Holders of Securities.
The notice shall identify the Securities (including CUSIP number, if any
and, in the case of partial redemption, the principal amount of the Securities)
to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price and method of payment, if other than in cash;
(3) if applicable, the then current conversion price or rate;
(4) the name and address of the Paying Agent and, if applicable, the
Conversion Agent or Exchange Agent;
(5) if applicable, that the right of the Holder to convert or exchange
Securities called for redemption shall terminate at the close of business
on the fifteenth day prior to the redemption date (or such other day as may
be specified as contemplated by Section 2.02 for Securities of any series);
(6) if applicable, that Holders who want to convert or exchange
Securities called for redemption must satisfy the requirements for
conversion or exchange contained in such Securities;
(7) that Securities called for redemption must be surrendered
(together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the redemption date) to the Paying Agent to
collect the redemption price;
(8) that interest, if any (or original issue discount, if Original
Issue Discount Securities) on Securities called for redemption ceases to
accrue on and after the redemption date, unless the Company defaults in
making such redemption payment; and
(9) that the redemption is for a sinking fund or at the election of
the Company, whichever is the case.
A notice of redemption published as contemplated by Section 10.02 need not
identify particularly Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense, provided that the Company
shall have furnished to the Trustee
30
the Officers' Certificate and Opinion of Counsel required pursuant to Section
10.04 at least 15 days prior to the date that the Trustee is required to take
any action in connection with a redemption.
Section 3.05 Effect of Notice of Redemption.
Once notice of redemption is provided, Securities of the series called for
redemption become due and payable on the redemption date and at the redemption
price therein specified and on and after such date (unless the Company shall
default in the payment of the redemption price and accrued interest, if any)
such Securities shall cease to bear interest, if any (and original issue
discount, if such Securities are Original Issue Discount Securities, shall cease
to accrue) and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Security for redemption in accordance with said
notice, together with all coupons, if any, appertaining thereto maturing after
the redemption date, such Security shall be paid by the Company at the
redemption price, together with the accrued interest to the redemption date,
provided, however, that installments of interest on Bearer Securities whose
stated maturity is on or prior to the redemption date shall be payable only at
an office or agency maintained by the Company in a place of payment located
outside the United States (except as otherwise provided in Section 4.01) and,
unless otherwise specified as contemplated by Section 2.02, only upon
presentation and surrender of the coupons for such interest, and, provided
further, that unless otherwise specified as contemplated by Section 2.02,
installments of interest on Registered Securities whose stated maturity is on or
prior to the redemption date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Regular Record Date or special record date, as the case
may be, according to their terms and the provisions of Section 2.13.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the redemption date, such Security may
be paid after deducting from the redemption price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the redemption price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 4.01) and,
unless otherwise specified as contemplated by Section 2.02, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
redemption date at the rate prescribed therefor in the Security.
31
Section 3.06. Deposit of Redemption Price.
Unless otherwise provided as contemplated by Section 2.02 with respect to
any series of Securities, on or before 10 a.m., New York time, on the redemption
date, the Company shall deposit with the Paying Agent money in immediately
available funds (or securities if permitted by the terms of such Securities)
sufficient to pay the redemption price of, and (except if the redemption date is
an Interest Payment Date) accrued interest, if any, on all Securities to be
redeemed on that date other than Securities or portions thereof called for
redemption on that date which are delivered by the Company to the Trustee for
cancellation. The Paying Agent shall return to the Company any money (or
securities) not required for that purpose because of conversion of Securities.
Section 3.07. Securities Redeemed in Part.
Any Registered Security that is to be redeemed only in part shall be
surrendered at a place of payment therefor (with, if the Company, the Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Registrar and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Registered Security or
Registered Securities of the same series, containing identical terms and
provisions, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal amount of the Security so surrendered, and, otherwise specified
as contemplated by Section 2.02, if a global Security is so surrendered, the
Company shall execute, and the Trustee shall authenticate and deliver to the
depositary for such global Security, without service charge, a new global
Security in a denomination equal to and in exchange for the unredeemed portion
of the principal amount of the global Security so surrendered.
Section 3.08. Conversion or Exchange Arrangement on Call for Redemption.
In connection with any redemption of Securities, the Company may arrange
for the purchase and conversion of any Securities called for redemption by an
agreement with one or more investment bankers or other purchasers to purchase
such Securities by paying to the Trustee in trust for the Securityholders, on or
before the close of business on the redemption date, an amount in cash not less
than the redemption price, together with interest, if any, accrued to the
redemption date, of such Securities. Notwithstanding anything to the contrary
contained in this Article III, the obligation of the Company to pay the
redemption price of such Securities, including all accrued interest, if any,
shall be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers. If such an agreement is entered into, any Securities
not duly surrendered for conversion or exchange by the Holders thereof may, at
the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such Holders and surrendered by such purchasers
for conversion or exchange, all as of immediately prior to the close of business
on the last day on which Securities of such series called for redemption may be
converted or exchanged in accordance with the terms of such Securities, subject
to payment of the above amount as aforesaid.
32
The Trustee shall hold and pay to the Holders whose Securities are selected for
redemption any such amount paid to it in the same manner as it would moneys
deposited with it by the Company for the redemption of Securities. Without the
Trustee's prior written consent, no arrangement between the Company and such
purchasers for the purchase and conversion or exchange of any Securities shall
increase or otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion or exchange of any Securities between the
Company and such purchasers, including the costs and expenses incurred by the
Trustee in the defense of any claim or liability arising out of or in connection
with the exercise or performance of any of its powers, duties, responsibilities
or obligations under this Indenture.
ARTICLE IV
COVENANTS
Section 4.01. Payment of Securities; Maintenance of Office or Agency.
The Company shall pay the principal of and any interest on the Securities
of each series in accordance with the terms of the Securities of such series,
any coupons appertaining thereto, and this Indenture.
To the extent enforceable under applicable law, the Company shall pay
interest on overdue principal at the rate borne by the Securities of such series
(unless a different rate is specified as contemplated by Section 2.02 for
Securities of such series).
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each place of payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations applicable
thereto, in a place of payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Securities of that series); provided, however,
that if the Securities of that series are listed on The International Stock
Exchange of the United Kingdom and the
▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
place of payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee and the Holders of the location, and
any change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency in respect of
any series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may be
made and notices and demands may be made or served at the corporate trust office
of the Trustee, except that Bearer Securities of that series and the related
coupons shall be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series) at , and the
Company hereby appoints the same as its agency to receive such respective
presentations, surrenders, notices and demands.
No payment of principal of or interest on Bearer Securities shall be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with
a bank located in the United States, provided, however, that, if the Securities
of a series are denominated and payable in Dollars, payment of principal of and
interest on any Bearer Security (including any Additional Amounts payable on
Securities of such series) shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal of or interest on or
additional amounts, as the case may be, at all offices or agencies outside the
United States maintained for that purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee
and the Holders of any such designation or rescission and of any change in the
location of any such other office or agency.
If any Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any such Security of such series
or any coupon appertaining thereto Additional Amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or interest on or in respect of, any Security of any series or
payment of any related coupon or the net proceeds received on the sale or
exchange of any Security
34
of any series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for in the terms of such Securities and this Section
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and this Section and express
mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided with respect to the Securities of any series
as contemplated by Section 2.02, if the Securities of a series provide for the
payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to that series of Securities (or if the Securities of
that series will not bear interest prior to the maturity thereof, the first day
on which a payment of principal is made), and at least 10 days prior to each
date of payment of principal or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the principal Paying Agent or Paying
Agents, if other than the Trustee, with an Officers' Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of principal
or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are Foreign Persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities or coupons and the Company will pay to the Trustee or such Paying
Agent the Additional Amounts required by the terms of such Securities and this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
Section 4.02. SEC Reports.
The Company shall file with the Trustee within 15 days after it files them
with the SEC copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
The Company also shall comply with the other provisions of (S)TIA (S) 314(a).
Section 4.03. Compliance Certificate.
The Company shall, within 120 days after the end of each fiscal year of the
Company, commencing with the first fiscal year following the issuance of
Securities of any series under this Indenture, file with the Trustee a
certificate of the principal executive officer, principal financial officer or
principal accounting officer of the Company covering the period from the date of
issuance of such Securities to the end of the fiscal year in which such
Securities were issued, in the case of the first such certificate, and covering
the preceding fiscal year in the case of each subsequent
35
certificate, and stating whether or not, to the knowledge of the signer, the
Company has complied with all conditions and covenants on its part contained in
this Indenture, and, if the signer has obtained knowledge of any default by the
Company in the performance, observance or fulfillment of any such condition or
covenant, specifying each such default and the nature thereof. For the purpose
of this Section 4.03, compliance shall be determined without regard to any grace
period or requirement of notice provided pursuant to the terms of this
Indenture. The certificate need not comply with Section 10.05.
The Company shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Company a written statement signed by the Company's
independent auditors stating (1) that their audit examination has included a
review of the terms of this Indenture and the Securities as they relate to
accounting matters, and (2) whether, in connection with their audit examination,
any Event of Default has come to their attention and if such an Event of Default
has come to their attention, specifying the nature and period of existence
thereof.
Section 4.04. Corporate Existence.
Subject to the provisions of Section 5.01 hereof, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence.
Section 4.05. Waiver of Certain Covenants.
If so provided in the applicable supplemental indenture, the Company may
omit in any particular instance to comply with any term, provision or condition
of any covenant set forth in such supplemental indenture with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the outstanding Securities of such
series shall either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
Section 4.06. No Lien Created.
This Indenture and the Securities do not create a Lien, charge or
encumbrance on any property of the Company or any Subsidiary.
Section 4.07. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on outstanding Securities as
of the end of such year.
36
ARTICLE V
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge into, or transfer its
properties and assets substantially as an entirety to, another entity unless (1)
the successor entity, which shall be an entity organized and existing under the
laws of the United States or a State thereof, assumes by supplemental indenture
all the obligations of the Company under the Securities and any coupons
appertaining thereto and this Indenture; and (2) immediately after giving effect
to such transaction, no Default or Event of Default shall have occurred and be
continuing. Thereafter, unless otherwise specified as contemplated by Section
2.02 for the Securities of any series and any related coupons, all such
obligations of the predecessor corporation shall terminate.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" with respect to Securities of any series means each
one of the events specified below in this Section 6.01, unless it is either
inapplicable to a particular series or is specifically deleted or modified as
contemplated by Section 2.02 for the Securities of such series, and any other
events as may be specified as contemplated by Section 2.02 for the Securities of
such series:
(1) the Company defaults in the payment of any interest on any
Security of that series when the same becomes due and payable and the
default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of any
Security of that series when the same becomes due and payable at maturity,
upon redemption (including default in the making of any mandatory sinking
fund payment), upon purchase by the Company at the option of the Holder
pursuant to the terms of such Security or otherwise;
(3) the Company fails to comply with any of its other agreements in
Securities of that series or this Indenture (other than an agreement which
has expressly been included in this Indenture solely for the benefit of
Securities of any series other than that series or is expressly made
inapplicable to the Securities of such series as contemplated by Section
2.02) and the default continues for the period and after the notice
specified below;
37
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case or consents to the commencement of
a case against it,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case or
adjudicates the Company insolvent or bankrupt,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the winding up or liquidation of the Company, and the
order or decree remains unstayed and in effect for 90 days; or
(6) any other Event of Default provided with respect to Securities of
that series occurs.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under clause (3) is not an Event of Default until the Trustee
notifies the Company or the Holders of at least 25% in aggregate principal
amount of the outstanding Securities of that series notify the Company and the
Trustee of the Default and the Company does not cure the Default within 60 days
after receipt of the notice. The notice must specify the Default, demand that it
be remedied and state that the notice is a "Notice of Default."
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in Section
6.01(4) or (5)) occurs and is continuing with respect to Securities of any
series at the time outstanding, the Trustee by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the
38
outstanding Securities of that series by notice to the Company and the Trustee,
may declare to be due and payable immediately (1) the principal amount (or, if
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of Securities of that
series) of all of the Securities of that series then outstanding and (2)
interest, if any, accrued to the date of acceleration. Upon such declaration,
such principal amount (or specified amount) and interest, if any, shall be due
and payable immediately. If an Event of Default specified in Section 6.01(4) or
(5) occurs and is continuing, (1) the principal amount (or, if the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of the Securities of that
series) of all of the Securities of that series then outstanding and (2)
interest, if any, accrued to the date of such acceleration, shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or Securityholders. The Holders of a majority in aggregate principal
amount of the outstanding Securities of the series with respect to which an
acceleration applies by notice to the Trustee may rescind an acceleration and
its consequences with respect to such series if all existing Events of Default
(other than the non-payment of the principal of and accrued interest, if any, on
Securities that have become due solely by such acceleration) with respect to
Securities of that series have been cured or waived and if the rescission would
not conflict with any judgment or decree.
Section 6.03. Other Remedies.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may pursue any available remedy by proceeding at law
or in equity to collect the payment of the whole amount which then shall have
become due and remain unpaid for principal or interest, if any, on the
Securities of that series and any related coupons or to enforce the performance
of any provision of the Securities of that series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities of that series or any related coupons or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any Holder of
Securities or related coupons, if any, in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Existing Defaults.
Subject to Section 9.02, the Holders of a majority in aggregate principal
amount of the outstanding Securities of any series by notice to the Trustee may
waive on behalf of the Holders of all the Securities of such series and any
related coupons an existing Default or Event of Default and its consequences.
When a Default or Event of Default is waived, it is cured and stops continuing.
39
Section 6.05. Control by Majority.
The Holders of a majority in aggregate principal amount of the outstanding
Securities of any series may 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 it, with respect to the Securities of such series. The
Trustee, however, may refuse to follow any direction that conflicts with law or
this Indenture, that is unduly prejudicial to the rights of another
Securityholder or that would involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
the right to pursue any remedy with respect to this Indenture or the Securities
unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to the Securities of that series;
(2) the Holders of at least 25% in aggregate principal amount of the
outstanding Securities of that series make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer and provide to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the outstanding Securities of such series.
A Securityholder of any series may not use this Indenture to prejudice the
rights of another Securityholder of such series or to obtain a preference or
priority over another Securityholder of such series, except in the manner herein
provided and for the equal and ratable benefit of all Securityholders of such
series.
Section 6.07. Rights of Holders to Receive Payment and to Convert or
Exchange.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security or a coupon to receive payment of principal of and (subject
to Sections 2.08 and 2.13) interest, if any, on the Security or payment on such
coupon, on or after the respective due dates with respect to such payments
expressed in such Security or coupon, and, if applicable, to convert or exchange
such Security on the terms and subject to the conditions applicable to
Securities of such series, or to bring suit for the enforcement of any such
payment on or after such respective dates or of such
40
right to convert or exchange, if any, shall not be impaired or affected without
the consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(l) or (2) occurs and is
continuing with respect to the Securities of any series, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount which then shall have become due and remain unpaid for
principal and interest, if any, on the Securities of such series and any related
coupons.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Securityholders (including the Holders of any coupons) allowed in any judicial
proceedings relative to the Company, its creditors or its property and to
collect and receive money, property or securities payable or deliverable on any
such claims and to distribute the same.
Section 6.10. Priorities.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in the case of the distribution of such money on account of principal or
interest, upon presentation of the Securities or coupons, or both, as the case
may be, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 7.07;
Second: to the payment of amounts due and unpaid for principal and
interest, if any, on the Securities and coupons in respect of which such
money has been collected, ratably, without preference or priority of any
kind, according to the amounts which then shall have become due and payable
on such Securities and coupons for principal and interest, respectively;
and
Third: to the Company.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
41
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in aggregate principal amount
of the outstanding Securities of any series.
ARTICLE VII
TRUSTEE
All the provisions of this Article VII apply to the Trustee acting in all
its appointed capacities pursuant to this Indenture unless any provision
specifically applies to the Trustee only in its capacity as Trustee.
Section 7.01. Duties of Trustee.
(a) If an Event of Default with respect to Securities of any series has
occurred and is continuing, the Trustee shall with respect to such series
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 man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) With respect to Securities of any series, except during the
continuance of an Event of Default with respect to Securities of such series:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture or the TIA and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. The
Trustee, however, in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section.
42
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse to perform any
duty or exercise any right or power unless it receives indemnity satisfactory to
it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel or require an Officers' Certificate, an Opinion of Counsel and/or an
accountant's certificate. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on the Certificate, Opinion, or
accountant's certificate.
(c) The Trustee may act through agents and counsel and shall not be
responsible for the misconduct or negligence of any agent or counsel appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and coupons and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, must comply with
Sections 7.10 and 7.11.
43
Section 7.04. Trustee's and Authenticating Agent's Disclaimer.
Neither the Trustee nor any Authenticating Agent makes any representation
as to the validity or adequacy of this Indenture or the Securities or the
coupons, if any, appertaining thereto; neither shall be accountable for the
Company's use of the proceeds from the Securities; and neither shall be
responsible for any statement in the Indenture or the Securities or any coupons
other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default occurs and is continuing with respect to Securities of any
series and if it is known to a Trust Officer of the Trustee, the Trustee shall
transmit by mail to the Holders of Securities of such series in the manner and
to the extent provided in (S)TIA (S) 313(c) notice of the Default within 90 days
after it occurs or as soon as reasonably practicable thereafter. Except in the
case of a default in payment of principal of or interest on any Security of such
series or any related coupons (including default in the making of any mandatory
sinking fund or mandatory repurchase payment), the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of Securityholders of
such series.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following the
date on which Securities are originally issued under this Indenture, the Trustee
shall transmit by mail to the Holders of Securities, in the manner and to the
extent provided in (S)TIA (S) 313(c), a brief report dated as of such May 15
that complies with (S)TIA (S) 313(a). The Trustee also shall comply with (S)TIA
(S) 313(b).
A copy of each report at the time of its mailing to Securityholders shall
be filed by the Company with the SEC and each stock exchange on which the
Securities are listed.
The Company will promptly notify the Trustee if and when the Securities are
listed on or delisted from any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee such compensation as shall have been
agreed upon in writing. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss or liability
incurred by it arising out of or in connection with the acceptance or
administration of this trust and its duties hereunder. The Trustee shall notify
the Company promptly of any claim asserted against the Trustee for which
44
it may seek indemnity. Failure of the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall have the
right to elect to defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its written consent. The Company need not reimburse any
expense or indemnify against any loss or liability incurred by the Trustee
through the Trustee's negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal of or
interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture and the resignation or the removal of the Trustee.
Section 7.08. Replacement of Trustee.
The Trustee may resign at any time with respect to the Securities of one or
more series by so notifying the Company. The Holders of a majority in aggregate
principal amount of the outstanding Securities of any series may remove the
Trustee with respect to the Securities of such series by so notifying the
removed Trustee and may appoint a successor Trustee with the Company's consent.
The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
The Company may remove the Trustee at any time with respect to the
Securities of any series upon delivery to the Trustee of a resolution of the
Board of Directors to such effect, provided that contemporaneously therewith no
Default with respect to the Securities of such series shall have occurred and be
continuing.
If the Trustee resigns or is removed, or if a vacancy exists in the office
of Trustee for any reason, with respect to the Securities of one or more series,
the Company shall promptly appoint a
45
successor Trustee or Trustees (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series).
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to the successor
Trustee (subject to the lien, if any, provided for in Section 7.07), the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall give notice in the manner
provided in Section 10.02 of its succession to each Securityholder.
If a successor Trustee with respect to the Securities of any series does
not take office within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of a majority in aggregate
principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust assets to, another corporation or
national banking association, the successor corporation or national banking
association without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of (S)TIA (S) 310(a). The Trustee shall always have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. With respect to the Securities of each series, the Trustee
shall comply with (S)TIA (S) 310(b). In determining whether the Trustee has a
conflicting interest as defined in TIA (S) 310(b) with respect to the Securities
of any series, there shall be excluded from such determination this Indenture
with respect to Securities of any particular series of Securities other than
that series. Nothing herein shall prevent the Trustee from filing with the SEC
the application referred to in the second to last paragraph of TIA (S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
Trustee shall comply with (S)TIA (S) 311(a), excluding any creditor
relationship listed in (S) TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated.
46
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.01. Termination of Company's Obligations.
The Company may terminate all of its obligations under the Securities of
any series and all coupons, if any, appertaining thereto, and this Indenture
with respect to the Securities of such series if either (1) all Securities of
such series and all coupons, if any, appertaining thereto, previously
authenticated and delivered (other than (i) destroyed, lost or wrongfully-taken
Securities or coupons which have been replaced or paid as provided in Section
2.09, (ii) Securities or coupons for whose payment money (or, if permitted by
the terms of such Securities, securities) has theretofore been held in trust and
thereafter repaid to the Company, as provided in Section 8.03, (iii) coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange whose surrender is not required or
has been waived as provided in Section 2.08, and (iv) coupons appertaining to
Bearer Securities called for redemption and maturing after the relevant
redemption date, whose surrender has been waived as provided in Section 3.09),
have been delivered to the Trustee for cancellation; or (2) the Company
irrevocably deposits in trust with the Trustee money or Government Obligations
sufficient to pay the principal of and interest, if any, on all Securities of
such series and all coupons, if any, appertaining thereto previously
authenticated and delivered, and not theretofore canceled or delivered to the
Trustee for cancellation (other than any such Security or coupon referenced in
subclauses (i), (ii), (iii), (iv) or (v) of clause (1) above), to maturity or
redemption, as the case may be.
The Company's obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 4.01,
7.07, 7.08, 8.01 and 8.03 of this Indenture, however, shall survive until the
Securities of such series are no longer outstanding. Thereafter the Company's
obligations in Sections 7.07 and 8.03 shall survive. Notwithstanding the
satisfaction and discharge of this Indenture with respect to the Securities of
any series, if money or Government Obligations shall have been deposited with
the Trustee pursuant to clause (2) of this Section, the obligations of the
Trustee under Section 8.02 and the second sentence of Section 8.03 shall
survive.
After a deposit and if all other conditions thereto are met, the Trustee
for the Securities of such series and the coupons, if any, appertaining thereto,
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture with respect to such Securities, except for those
surviving obligations specified above; provided, however, that the Trustee shall
not be required to execute such instrument until the expiration of ninety days
after the date of a deposit.
In order to have money available on a payment date to pay the principal of
or interest, if any, on the Securities, the Government Obligations shall be
payable as to principal or interest on or before such payment date in such
amounts as will provide the necessary money. U.S. Government Obligations shall
not be callable at the issuer's option.
47
Section 8.02. Application of Trust Fund.
The Trustee shall hold in trust money and Government Obligations deposited
with it pursuant to Section 8.01. It shall apply the deposited money and the
money from the Government Obligations through the Paying Agent and in accordance
with the provisions of the Securities, the coupons and this Indenture to the
payment of principal of and interest, if any, on the Securities and related
coupons, if any, for the payment of which such money or Government Obligations
has been deposited with the Trustee.
The Company shall pay, and indemnify the Trustee against, any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 8.01 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of outstanding Securities.
Section 8.03. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
written request any excess money or securities held by them at any time. The
Trustee and the Paying Agent shall pay to the Company upon written request any
money or securities held by them for the payment of principal or interest, if
any, that remains unclaimed for two years; provided, however, that the Trustee
and the Paying Agent, before being required to make any such payment may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
each place of payment, notice that such money remains unclaimed and that, after
a date specified therein, which date shall not be less than 30 days from such
date of such publication, any unclaimed balance of such money then remaining
will be paid to the Company. After that, Holders entitled to the money or
securities must look to the Company for payment unless an applicable abandoned
property law designates another person.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the
Securities of any series without notice to or consent of any Holder of
Securities or coupons or the Holder of any coupons:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Section 5.01;
48
(3) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 2.01 and 2.02;
(4) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(5) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such Events of Default are expressly being included solely to be
applicable to such series);
(6) to change or eliminate any of the provisions of this Indenture,
provided that, except as otherwise contemplated by Section 2.02(22), any
such change or elimination shall become effective only when there is no
Security outstanding of any series created prior thereto which is entitled
to the benefit of such provision;
(7) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or
interest on Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, or to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations
or to facilitate or permit the issuance of Securities in uncertificated
form (so long as any "registration-required obligation" within the meaning
of Section 163(f)(2) of the Internal Revenue Code of 1986, as amended (the
"Code") is in registered form for purposes of the Code) provided, that any
such action shall not adversely affect the interests of Holders of
Securities of any series or any related coupons in any material respect;
(8) to make any change that, in the opinion of the Board of Directors,
does not materially adversely affect the rights of any Securityholder or
the Holder of any coupon; or
(9) to comply with any requirement of the SEC in connection with the
qualification of this Indenture under the TIA.
Section 9.02. With Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the
Securities of any series without notice to any Holder of Securities or coupons
but with the consent of the Holders of a majority in aggregate principal amount
of the outstanding Securities of each series affected by such amendment or
supplement, by Act of said Holders delivered to the Trustee. The Holders of a
majority in aggregate principal amount of the outstanding Securities of any
series, by Act of said Holders delivered to the Trustee, may on behalf of the
Holders of all Securities of such series and
49
any related coupons waive compliance by the Company with any provision of this
Indenture or of Securities of such series without any notice to any Holder of
Securities or coupons. Without the consent of the Holder of each outstanding
Security affected thereby, however, an amendment, supplement or waiver,
including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities of any series whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest on
any Security (or, in the case of an Original Issue Discount Security,
reduce the rate of accrual of original issue discount);
(3) reduce the principal of (or any premium payable upon the
redemption of) or extend the fixed maturity of any Security (or, in the
case of an Original Issue Discount Security, reduce the portion of the
principal amount that would be due and payable upon acceleration of the
maturity thereof pursuant to Section 6.02);
(4) change the amount or time of any payment required by any sinking
fund provisions of the Securities of any series;
(5) make any change that materially adversely affects the right of a
Holder to require the Company to purchase a Security in accordance with the
terms thereof and this Indenture;
(6) waive a default in the payment of principal of or interest, if
any, on any Security;
(7) make any Security payable in money or securities other than that
stated in the Security;
(8) make any change that materially adversely affects the right to
convert any Security or that increases the conversion price or reduces the
conversion rate of any Security; or
(9) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 4.01.
It shall not be necessary for the Act of the Holders under this Section to
approve the particular form of any proposed supplement or amendment, but it
shall be sufficient if such Act approves the substance thereof.
An amendment to or supplement of this Indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one
50
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.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
Section 9.04. Effect of Amendments and Supplements.
Upon the execution of any amendment or supplement authorized pursuant to
this Article, this Indenture shall be modified in accordance therewith, and such
amendment or supplement shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupon appertaining thereto shall be bound
thereby.
Section 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article if the amendment, supplement or waiver does not
adversely affect the rights, duties, immunities or liabilities of the Trustee.
If it does, the Trustee may but need not sign it. The Company may not sign an
amendment or supplement until the Board of Directors approves it.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture.
51
ARTICLE X
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of TIA (S)(S) 310 to 317, inclusive, through operation of
TIA (S) 318(c), such imposed duties shall control.
Section 10.02. Notices.
Any notice or communication (including any Act of Holders) shall be
sufficiently given if in writing and delivered in person or mailed by first-
class mail addressed as follows:
If to the Company:
Tele-Communications, Inc.
Terrace Tower II
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
If to the Trustee:
Attention:
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Except as otherwise expressly provided herein or otherwise specified with
respect to any series of Securities issuable as Bearer Securities pursuant to
Section 2.02, where this Indenture provides for notice to Holders of Securities
of any event:
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the security register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in the City of New York
and in such other city or
52
cities as may be specified in such Securities on a Business Day at least
twice, the first such publication to be not earlier than the earliest date,
and not later than the latest date, prescribed for the giving of such
notice (except that, for purposes of Section 2.05, notice of the
appointment of a successor Authenticating Agent shall be sufficiently given
to Holders of Bearer Securities if published as provided herein at least
once).
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
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 equivalent of such notice. Waivers
of notice by Holders of Securities shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Except for a notice to the Trustee, which is deemed given only when
received, if a notice or communication is mailed in the manner provided above,
it is duly given, whether or not the addressee receives it. Any notice or
communication published in the manner provided above shall be deemed to have
been given on the date of publication or, if published more than once, on the
date of the first such publication.
Any notice or communication required or permitted under this Indenture
shall be in the English language, except that any published notice may be in the
official language of the country of publication.
53
Section 10.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to (S)(S)TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of(S) TIA (S) 312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent (including any covenants compliance with
which constitutes a condition precedent), if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent (including any covenants compliance
with which constitutes a condition precedent) have been complied with.
Section 10.05. Statements Required in Certificate or Opinion.
Each Officers' Certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture other than
certificates provided pursuant to Section 4.03 shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he 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
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
54
Section 10.06. When Treasury Securities Disregarded.
In determining whether the Holders of the required aggregate principal
amount of outstanding Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver or taken any other action
hereunder, Securities of such series owned by the Company or by any Affiliate of
the Company shall be disregarded and deemed not to be outstanding, except that
for the purpose of determining whether the Trustee shall be protected in relying
on such request, demand, authorization, direction, notice, consent, waiver or
action, only Securities of such series which the Trustee actually knows are so
owned shall be so disregarded. Securities so owned that 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 to so act with respect to such
Securities and that the pledgee is not the Company or any Affiliate of the
Company.
Section 10.07. Rules by Trustee and Agents.
Subject to Section 10.15 and Article XI, the Trustee may make reasonable
rules for action by or a meeting of Securityholders of all series or any series.
The Registrar, Paying Agent, Conversion Agent or Exchange Agent may make
reasonable rules for its functions.
Section 10.08. Legal Holidays.
A "Legal Holiday" with respect to any place of payment or conversion or
other location is a Saturday, a Sunday or a day on which banking institutions or
trust companies in that place of payment, conversion or other location are not
authorized or required to be open. If a payment date or the last day to convert
a Security is a Legal Holiday at a place of payment or conversion, payment or
conversion may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest or original issue discount, as the case may be,
shall accrue for the intervening period.
Section 10.09. Governing Law.
The internal laws of the State of New York shall govern this Indenture, the
Securities and coupons.
Section 10.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.11. No Recourse Against Others.
No past, present or future director, officer, employee or stockholder, as
such, of the Company or the Trustee or any successor of either thereof shall
have any liability for any obligations of the
55
Company or the Trustee under the Securities or any coupons appertaining thereto
or this Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation and all such liability is hereby waived and
released. Such waiver and release are part of the consideration for the issue of
the Securities.
Section 10.12. Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 10.13. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section 10.14. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
Section 10.15. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article XI, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 7.01)
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 11.06.
56
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds. Where such execution is by a signer acting
in a capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date of
the execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership, principal amount and serial numbers of outstanding
Registered Securities held by any person, and the date of holding the same,
shall be proved by the security register.
(d) The ownership, principal amount and serial numbers of outstanding
Bearer Securities held by any person, and the date of holding the same, may be
proved by the production of such Bearer Securities or by a certificate executed,
as depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such person had on deposit with such
depositary or exhibited to it, the Bearer Securities therein described, or such
facts may be proved by the certificate or affidavit of the person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Securities continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
or (2) such Bearer Security is produced to the Trustee by some other person or
(3) such Bearer Security is surrendered in exchange for a Registered Security or
(4) such Bearer Security is no longer outstanding. The ownership, principal
amount and serial numbers of outstanding Bearer Securities held by any person,
and the date of holding the same, may also be proved in any other manner which
the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
or pursuant to a resolution of the Board of Directors, fix in advance a record
date for the determination of Holders of Registered Securities entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
Act. Notwithstanding TIA (S) 316(c), such record date shall be the record date
specified in or pursuant to such resolution of the Board of Directors, which
shall be a date not earlier than 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of Registered Securities
of record at the close of business on such record date shall be deemed to be
Holders for the purpose of determining whether Holders of the requisite
proportion of outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders of
57
Registered Securities shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind such Holder and every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Agent or the Company in reliance thereon, whether or not notation of such action
is made upon such Security.
ARTICLE XI
MEETINGS OF HOLDERS OF SECURITIES
Section 11.01. Purposes for which Meetings may be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
Section 11.02. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 11.01, to be held at such time
and at such place in the Borough of Manhattan, the City of New York, or in
London as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 10.02, not less than 21 nor more than
180 days prior to the date for the meeting.
(b) In case at any time the Company pursuant to a resolution of the Board
of Directors or the Holders of at least 10% of the aggregate principal amount of
outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 11.01, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, the City of New York, or in London for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in subsection (a) of this Section.
58
Section 11.03. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a person shall be (1) a Holder of one or more outstanding Securities of
such series, or (2) a person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more outstanding Securities of such series by such
Holder or Holders. The only persons who shall be entitled to be present or to
speak at any meeting of Holder of Securities of any series shall be the persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 11.04. Quorum; Action.
The persons entitled to vote a majority of the aggregate principal amount
of the outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 11.02(a), except that
such notice shall be given only once not less than five days prior to the date
on which the meeting is scheduled to be reconvened.
Except as limited by the third sentence of Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in aggregate principal amount of the outstanding Securities of that
series; provided, however, that, except as limited by the third sentence of
Section 9.02, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in aggregate principal amount of the
outstanding Securities of a series, may be adopted at a meeting or an adjourned
meeting duly reconvened at which a quorum is present as aforesaid, by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 11.04, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in aggregate principal amount
59
of all outstanding Securities affected thereby, or of the Holders of such series
and one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
Section 11.05. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 10.15 and the
appointment of any proxy shall be proved in the manner specified in Section
10.15 or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 10.15 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 10.15 or other proof.
(b) The Trustee shall by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 11.02(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the persons entitled to vote a majority of the aggregate principal
amount of the outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the outstanding
Securities of such series held or represented by him, provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 11.02 at which a quorum is present may be adjourned from time to time
by persons entitled to vote
60
a majority of the aggregate principal amount of the outstanding Securities of
such series represented at the meeting and the meeting may be held as so
adjourned without further notice.
Section 11.06. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amount and serial numbers of
the outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 11.02 and, if
applicable, Section 11.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
61
SIGNATURES
Dated: , TELE-COMMUNICATIONS, INC.
By:___________________________________
Attest: (Seal)
Dated: , , Trustee
By:___________________________________
Attest: (Seal)
62