1
LUCENT TECHNOLOGIES INC.
AND
[-----------------------]
TRUSTEE
------------
INDENTURE
DATED AS OF [_______________,1996]
------------
SECURITIES
2
Reconciliation and tie between Indenture dated as of [_________, 1996] and the
Trust Indenture Act of 1939. This reconciliation section does not constitute
part of the Indenture.
Trust Indenture Act Indenture
of 1939 Section Section
--------------------------------------------------------------------------------
310(a)(1)....................................................... 7.10
(a)(2)....................................................... 7.10
(a)(3)....................................................... Inapplicable
(a)(4)....................................................... Inapplicable
(b).......................................................... 7.08; 7.10
(c).......................................................... Inapplicable
311(a).......................................................... 7.11
(b).......................................................... 7.11
(c).......................................................... Inapplicable
312(a).......................................................... 2.07
(b).......................................................... 10.03
(c).......................................................... 10.03
313(a).......................................................... 7.06
(b)(1)....................................................... Inapplicable
(b)(2)....................................................... 7.06
(c).......................................................... 10.02
(d).......................................................... 7.06
314(a).......................................................... 4.02; 10.02
(b).......................................................... Inapplicable
(c)(1)....................................................... 10.04
(c)(2)....................................................... 10.04
(c)(3)....................................................... Inapplicable
(d).......................................................... Inapplicable
(e).......................................................... 10.05
(f).......................................................... Inapplicable
315(a).......................................................... 7.01(b)
(b).......................................................... 7.05; 10.02
(c).......................................................... 7.01(a)
(d).......................................................... 7.01(c)
(e).......................................................... 6.07
316(a)(last sentence)........................................... 10.10
(a)(1)....................................................... 6.06
(a)(2)....................................................... Inapplicable
(b).......................................................... 6.04
317(a).......................................................... 6.02
(b).......................................................... 2.06
318(a).......................................................... 10.01
3
TABLE OF CONTENTS*
Page
----
PARTIES........................................................... 1
RECITALS OF THE COMPANY:
Purpose of Indenture...................................... 1
Compliance with Legal Requirements........................ 1
Purpose of and Consideration for Indenture................ 1
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE.
Section 1.01. Definitions.......................... 1
Affiliate............................ 1
Agent................................ 2
Attributable Debt.................... 2
Authorized Newspaper................. 2
Board of Directors................... 3
Board Resolution..................... 3
Company.............................. 3
Company Order........................ 3
Consolidated Net Tangible Assets..... 3
Default.............................. 4
Depositary........................... 4
Funded Debt.......................... 4
Global Security...................... 5
Holder or Securityholder............. 5
Indebtedness......................... 5
Indenture............................ 6
Lien................................. 6
Officer.............................. 7
Officers' Certificate................ 8
Opinion of Counsel................... 8
Original Issue Discount Security..... 8
Principal............................ 8
Principal Property................... 8
Registered Security.................. 9
Responsible Officer.................. 9
Restricted Securities................ 10
Restricted Subsidiary................ 10
Sale and Leaseback Transaction....... 11
SEC.................................. 12
Secured Indebtedness................. 12
Series or Series of Securities....... 16
Securities........................... 16
Subsidiary........................... 16
TIA.................................. 16
-------------
* The Table of Contents is not part of the Indenture.
i
4
Page
----
ARTICLE 1. (Continued)
Trust Indenture Act of 1939.............. 16
Trustee.................................. 17
U.S. Government Obligations.............. 17
U.S. Person.............................. 17
Unregistered Security.................... 18
Voting Shares............................ 18
Yield to Maturity........................ 18
Section 1.02. Other Definitions........................ 18
Section 1.03. Incorporation by Reference of
Trust Indenture Act...................... 18
Section 1.04. Rules of Construction.................... 19
ARTICLE 2.
THE SECURITIES.
Section 2.01. Issuable in Series....................... 20
Section 2.02. Establishment of Terms and Form of
Series of Securities..................... 21
Section 2.03. Execution, Authentication and Delivery... 25
Section 2.04. Registrar and Paying Agent............... 30
Section 2.05. Payment on Securities.................... 31
Section 2.06. Paying Agent to Hold Money in Trust...... 32
Section 2.07. Securityholder Lists; Ownership of
Securities............................... 32
Section 2.08. Transfer and Exchange.................... 34
Section 2.09. Replacement Securities................... 36
Section 2.10. Outstanding Securities................... 37
Section 2.11. Temporary Securities; Global Securities.. 38
Section 2.12. Cancellation............................. 42
Section 2.13. Defaulted Interest....................... 42
ARTICLE 3.
REDEMPTION.
Section 3.01. Notice to Trustee........................ 42
Section 3.02. Selection of Securities to be Redeemed... 43
Section 3.03. Notice of Redemption..................... 44
Section 3.04. Effect of Notice of Redemption........... 45
Section 3.05. Deposit of Redemption Price.............. 46
Section 3.06. Mandatory and Optional Sinking Funds..... 46
-ii-
5
Page
----
ARTICLE 4.
COVENANTS.
Section 4.01. Payment of Securities.................... 51
Section 4.02. Reports by the Company................... 53
Section 4.03. Limitations on Liens..................... 54
Section 4.04. Limitations and Sales on Leasebacks...... 55
Section 4.05. Waiver of Covenants...................... 56
ARTICLE 5.
SUCCESSOR CORPORATION.
Section 5.01. Consolidation, ▇▇▇▇▇▇, Sale or
Conveyance............................... 56
Section 5.02. Assumption and Substitution.............. 57
Section 5.03. Opinion of Counsel....................... 59
ARTICLE 6.
DEFAULTS AND REMEDIES.
Section 6.01. Events of Default; Acceleration of
Maturity; Waiver of Default.............. 59
Section 6.02. Collection of Indebtedness by Trustee;
Trustee May Prove Debt................... 64
Section 6.03. Application of Proceeds.................. 69
Section 6.04. Limitation on Suits by Securityholders... 70
Section 6.05. Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default........ 72
Section 6.06. Control by Securityholders; Waiver of
Defaults................................. 73
Section 6.07. Right of Court to Require Filing of
Undertaking to Pay Costs................. 75
ARTICLE 7.
TRUSTEE.
Section 7.01. Duties of Trustee........................ 76
Section 7.02. Rights of Trustee........................ 78
Section 7.03. Individual Rights of Trustee............. 79
Section 7.04. Trustee Disclaimer....................... 79
Section 7.05. Notice of Default........................ 79
Section 7.06. Reports by Trustee to Holders............ 80
-iii-
6
Page
----
ARTICLE 7. (Continued)
Section 7.07. Compensation and Indemnity............... 81
Section 7.08. Replacement of Trustee................... 82
Section 7.09. Successor Trustee, Agents by
▇▇▇▇▇▇, etc.............................. 85
Section 7.10. Eligibility; Disqualification............ 85
Section 7.11. Preferential Collection of Claims
Against Company.......................... 86
ARTICLE 8.
DISCHARGE OF INDENTURE.
Section 8.01. Satisfaction and Discharge of Indenture.. 87
Section 8.02. Defeasance upon Deposit of Monies or
U.S. Government Obligations.............. 89
Section 8.03. Application of Monies Deposited.......... 92
Section 8.04. Repayment of Monies Held................. 92
Section 8.05. Return of Monies Unclaimed for
Two Years................................ 93
Section 8.06. Indemnity for Government Obligations..... 94
ARTICLE 9.
AMENDMENTS AND WAIVERS.
Section 9.01. Without Consent of Holders............... 94
Section 9.02. With Consent of Holders.................. 95
Section 9.03. Compliance with Trust Indenture Act...... 97
Section 9.04. Revocation and Effect of Consents........ 97
Section 9.05. Notation on or Exchange of Securities.... 98
Section 9.06. Trustee Protected........................ 98
ARTICLE 10.
MISCELLANEOUS.
Section 10.01. Trust Indenture Act Controls............. 99
Section 10.02. Notices.................................. 99
Section 10.03. Communication by Holders with
Other Holders............................ 101
Section 10.04. Certificate and Opinion as to
Conditions Precedent..................... 101
Section 10.05. Statements Required in Certificate
or Opinion............................... 102
Section 10.06. Legal Holidays........................... 103
Section 10.07. Governing Law............................ 103
-iv-
7
Page
----
ARTICLE 10. (Continued)
Section 10.08. No Adverse Interpretation of Other
Agreements............................... 103
Section 10.09. No Recourse Against Others............... 103
Section 10.10. When Treasury Securities Disregarded..... 104
Section 10.11. Rules by Trustee, Paying Agent,
Registrar................................ 104
Section 10.12. Execution in Counterparts................ 105
Section 10.13. Securities in a Foreign Currency......... 105
Section 10.14. Judgment Currency........................ 107
SIGNATURES AND SEALS.................................................. 109
ACKNOWLEDGMENTS....................................................... 110
-v-
8
INDENTURE dated as of [_______________,1996], between Lucent
Technologies Inc., a corporation duly organized and validly existing under the
laws of the State of Delaware (the "Company"), and [_______________________], as
trustee, a corporation duly organized and validly existing under the laws of the
State of [_______________] (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") as herein
provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE.
SECTION 1.01. DEFINITIONS.
"Affiliate" means any person directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
the Company.
9
-2-
"Agent" means any Paying Agent or Registrar.
"Attributable Debt" means, as of the date of its
determination, the present value (discounted semiannually at an interest rate
implicit in the terms of the lease) of the obligation of a lessee for rental
payments pursuant to any Sale and Leaseback Transaction (reduced by the amount
of the rental obligations of any sublessee of all or part of the same property)
during the remaining term of such Sale and Leaseback Transaction (including any
period for which the lease relating thereto has been extended), such rental
payments not to include amounts payable by the lessee for maintenance and
repairs, insurance, taxes, assessments and similar charges and for contingent
rents (such as those based on sales), provided, however, that in the case of any
Sale and Leaseback Transaction in which the lease is terminable by the lessee
upon the payment of a penalty, Attributable Debt shall mean the lesser of the
present value of (a) the rental payments to be paid under such Sale and
Leaseback Transaction until the first date (after the date of such
determination) upon which it may be so terminated plus the then applicable
penalty upon such termination and (b) the rental payments required to be paid
during the remaining term of such Sale and Leaseback Transaction (assuming such
termination provision is not exercised).
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of
10
-3-
publication or in the English language, customarily published on each business
day. Whenever successive weekly publications in an Authorized Newspaper are
required hereunder they may be made (unless otherwise expressly provided herein)
on the same or different days of the week and in the same or different
Authorized Newspapers.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board
of Directors, certified by the Secretary or an Assistant Secretary of the
Company to have been adopted by the Board of Directors and to be in full force
and effect on the date of the certificate, and delivered to the Trustee.
"Company" means Lucent Technologies Inc. until a successor
replaces it subject to the provisions of Article 5 and thereafter means the
successor.
"Company Order" means an order signed by two Officers or by
any Officer and an Assistant Treasurer or an Assistant Secretary of the Company.
"Consolidated Net Tangible Assets" means, at any date, the
total assets appearing in the most recently prepared consolidated balance sheet
of the Company and its consolidated Subsidiaries as of the end of the most
recent fiscal quarter of the Company for which such balance sheet is available,
prepared in accordance with generally accepted accounting principles, less (a)
all current
11
-4-
liabilities as shown on such balance sheet and (b) Intangible Assets.
"Intangible Assets" means the value (net of any applicable reserves), as shown
on or reflected in such balance sheet, of: (i) all trade names, trademarks,
licenses, patents, copyrights and goodwill; (ii) organization costs; and (iii)
deferred charges (other than prepaid items such as insurance, taxes, interest,
commissions, rents and similar items and tangible assets being amortized); but
in no event shall the term "Intangible Assets" include product development cost.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Depositary" means, (i) with respect to Global Securities of
any Series which are offered for sale solely outside of the United States, a
common depositary for ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euro-clear System, and CEDEL, and (ii) with respect
to Global Securities of any Series which are offered for sale in the United
States, a clearing agency registered under the Securities Exchange Act of 1934,
or any successor thereto, which shall in either case be designated by the
Company pursuant to either Section 2.02 or 2.11.
"Funded Debt" means any Indebtedness maturing by its terms
more than one year from the date of the determination thereof, including any
Indebtedness renewable or extendible at the
12
-5-
option of the obligor to a date later than one year from the date of the
determination thereof.
"Global Security" means, with respect to any Series of
Securities issued hereunder, a Security, which may be a Registered Security, or
an Unregistered Security, executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture including Section 2.11 and
pursuant to a Company Order, and which shall represent, and shall be denominated
in an amount equal to the aggregate principal amount of, all of the outstanding
Securities of such Series or a portion thereof, in either case having the same
terms, including, without limitation, the same issue date, date or dates on
which principal is due, interest rate or method of determining interest, and, in
the case of Original Issue Discount Securities, which have the same issue price.
"Global Security" shall include any temporary global Security and any permanent
global Security.
"Holder" or "Securityholder" means a bearer of an Unregistered
Security or of a coupon appertaining thereto or a person in whose name a
Registered Security is registered on the Registrar's books.
"Indebtedness" of any corporation means all indebtedness
representing money borrowed which is created, assumed, incurred or guaranteed in
any manner by such corporation or for which such corporation is otherwise
responsible or liable (whether by
13
-6-
agreement to purchase indebtedness of, or to supply funds to or invest in,
others).
"Indenture" means this Indenture as amended or supplemented
from time to time and shall include the forms and terms of particular Series of
Securities established as contemplated hereunder.
"Lien" means any mortgage, pledge, security interest, lien,
charge or other encumbrance, but shall not include any of the foregoing types of
encumbrances on any property held for sale in the ordinary course of business,
inventory and work in progress or that are incidental to the conduct of the
business of the Company or any Restricted Subsidiary or the ownership of the
property and assets of any of them and that were not incurred in connection with
the incurrence of any Indebtedness. Such incidental encumbrances that are to be
excluded from the term "Lien" include, without limitation: pledges or deposits
made to secure obligations of the Company or a Restricted Subsidiary under
workmen's compensation laws or similar legislation; liens imposed by law, such
as materialmen's, mechanics', carriers', workmen's, vendors', repairmen's, or
other like liens incurred in the ordinary course of business; governmental
(Federal, state or municipal) liens arising out of contracts for the purchase of
products of the Company or a Restricted Subsidiary, and deposits or pledges to
obtain the release of any of the foregoing liens; liens created by or resulting
from any litigation or legal proceeding that is
14
-7-
currently being contested in good faith by appropriate proceedings; leases made
or existing on Principal Property entered into in the ordinary course of
business by the Company or a Restricted Subsidiary; landlords' liens under
leases of Principal Property to which the Company or a Restricted Subsidiary is
a party; zoning restrictions, easements, licenses or restrictions on the use of
Principal Property or minor irregularities in the title thereto; deposits in
connection with bids, tenders, contracts (other than for the payment of money)
to which the Company or any Restricted Subsidiary is a party; deposits to secure
public or statutory obligations of the Company or any Restricted Subsidiary;
deposits in connection with obtaining or maintaining self-insurance or to obtain
the benefits of any law, regulation or arrangement pertaining to unemployment
insurance, old age pensions, social security or similar matters; deposits of
cash or obligations of the United States of America to secure surety, appeal or
customs bonds to which the Company or any Restricted Subsidiary is a party; and
liens for taxes or assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, or which are being
contested in good faith by appropriate proceedings.
"Officer" means the Chairman of the Board of Directors, any
Vice-Chairman of the Board of Directors, the Chief Executive Officer, the
President, any Vice-President (whether or not designated by a number or numbers,
or a word or words added before or after the title Vice
15
-8-
President), the Treasurer, the Secretary or the Controller of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by any Officer and an Assistant Treasurer or an Assistant Secretary
of the Company.
"Opinion of Counsel" means a written opinion of legal counsel
who is reasonably acceptable to the Trustee. The counsel may be an employee of
or counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01.
"Principal" whenever used with reference to the securities or
any portion thereof shall be deemed to include "and premium, if any."
"Principal Property" means any land, land improvements,
buildings and associated factory, laboratory, office and switching equipment
(excluding all products marketed by the Company or any Subsidiary) constituting
a manufacturing facility, development facility, warehouse facility, service
facility, office facility or operating facility (including any portion thereof),
which facility (a) is owned by or leased to the Company or any Restricted
Subsidiary, (b) is located within the United States and (c) has an acquisition
cost plus capitalized improvements in excess of 1.25% of Consolidated Net
Tangible Assets as of the date of such
16
-9-
determination, other than (i) any such facility, or portion thereof, which has
been financed by obligations issued by or on behalf of a State, a Territory or a
possession of the United States, or any political subdivision of any of the
foregoing, or the District of Columbia, the interest on which is excludable from
gross income of the holders thereof (other than a "substantial user" of such
facility or a "related person" as those terms are used in Section 147 of the
Internal Revenue code of 1986, as amended (the "Code")) pursuant to the
provisions of Section 103 of the Code (or any similar provisions hereafter
enacted) as in effect at the time of issuance of such obligations, (ii) any such
facility which the Board of Directors may by resolution declare is not of
material importance to the Company and the Restricted Subsidiaries taken as a
whole and (iii) any such facility, or portion thereof, owned or leased jointly
or in common with one or more persons other than the Company and any Subsidiary
and in which the interest of the Company and all Subsidiaries does not exceed
50%.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest by the Registrar.
"Responsible Officer", when used with respect to the Trustee,
shall mean the chairman or any vice-chairman of the board of directors or trust
17
-10-
committee, the chairman or any vice-chairman of the executive committee of the
board of directors or trust committee, the president, any vice-president, the
cashier, the secretary, the treasurer, any trust officer, any second or
assistant vice-president or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with a particular subject.
"Restricted Securities" means any shares of capital stock or
Indebtedness of any Restricted Subsidiary.
"Restricted Subsidiary" means (a) any Subsidiary (i) which has
substantially all its property within the United States of America, (ii) which
owns or is a lessee of any Principal Property, and (iii) in which the investment
of the Company and all other Subsidiaries exceeds 1.25% of Consolidated Net
Tangible Assets as of the date of such determination; provided, however, that
the term "Restricted Subsidiary" shall not include (A) any Subsidiary (x)
primarily engaged in the business of purchasing, holding, collecting, servicing
or otherwise dealing in and with installment sales contracts, leases, trust
receipts, mortgages, commercial paper or other financing instruments and any
collateral or agreements relating thereto, including in the business,
individually or through partnerships, of financing (whether through long- or
short-term borrowings, pledges, discounts or otherwise) the sales, leasing or
other operations of the Company
18
-11-
and the Subsidiaries or any of them, or (y) engaged in the business of financing
the assets and operations of third parties; provided that notwithstanding (x)
and (y) above, such Subsidiary shall be a Restricted Subsidiary if it owns,
leases or operates any property which would qualify as Principal Property except
as incidental to such financing business; or (B) any Subsidiary acquired or
organized after January 31, 1996 for the purpose of acquiring the stock or
business or assets of any person other than the Company or any Restricted
Subsidiary, whether by merger, consolidation, acquisition of stock or assets or
similar transaction analogous in purpose or effect, so long as such Subsidiary
does not acquire by merger, consolidation, acquisition of stock or assets or
similar transactions analogous in purpose or effect all or any substantial part
of the business or assets of the Company or any Restricted Subsidiary; and (b)
any other Subsidiary which is hereafter designated by the Board of Directors as
a Restricted Subsidiary.
"Sale and Leaseback Transaction" means any arrangement with
any person providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property (whether such Principal Property is now owned or
hereafter acquired) that has been or is to be sold or transferred by the Company
or such Restricted Subsidiary to such person, other than (a) temporary leases
for a term, including renewals at the option of the lessee, of not more than
three years; (b) leases between the Company and a
19
-12-
Restricted Subsidiary or between Restricted Subsidiaries; and (c) leases of
Principal Property executed by the time of, or within 180 days after the latest
of, the acquisition, the completion of construction or improvement (including
any improvements on property which will result in such property becoming
Principal Property), or the commencement of commercial operation of such
Principal Property.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means (a) Indebtedness of the Company
or a Restricted Subsidiary which is secured by any Lien upon any Principal
Property or Restricted Securities and (b) Indebtedness of the Company or a
Restricted Subsidiary in respect of any conditional sale or other title
retention agreement covering Principal Property or Restricted Securities; but
"Secured Indebtedness" shall not include any of the following:
(i) Indebtedness of the Company and the Restricted
Subsidiaries outstanding on February 1, 1996, secured by then existing
Liens upon, or incurred in connection with conditional sales agreements
or other title retention agreements with respect to, Principal Property
or Restricted Securities;
(ii) Indebtedness which is secured by (A) purchase money Liens
upon Principal Property or Restricted Securities acquired after January
31, 1996, or (B) Liens placed on Principal Property after January 31,
1996, during
20
-13-
construction or improvement thereof (including any improvements on
property which will result in such property becoming Principal
Property) or placed thereon within 180 days after the later of
acquisition, completion of construction or improvement or the
commencement of commercial operation of such Principal Property or
improvement, or placed on Restricted Securities acquired after January
31, 1996, or (C) conditional sale agreements or other title retention
agreements with respect to any Principal Property or Restricted
Securities acquired after January 31, 1996 if (in each case referred to
in this subparagraph (ii)) (x) such Lien or agreement secures all or
any part of the Indebtedness incurred for the purpose of financing all
or any part of the purchase price or cost of construction of such
Principal Property or improvement or Restricted Securities and (y) such
Lien or agreement does not extend to any Principal Property or
Restricted Securities other than the Principal Property or Restricted
Securities so acquired or the Principal Property, or portion thereof,
on which the property so constructed, or such improvement is located;
provided, however, that the amount by which the aggregate principal
amount of Indebtedness secured by any such Lien or agreement exceeds
the cost to the Company or such Restricted Subsidiary of the related
acquisition, construction or improvement shall be considered to be
"Secured Indebtedness";
21
-14-
(iii) Indebtedness which is secured by Liens on Principal
Property or Restricted Securities, which Liens exist at the time of
acquisition (by any manner whatsoever) of such Principal Property or
Restricted Securities by the Company or a Restricted Subsidiary;
(iv) Indebtedness of Restricted Subsidiaries owing to the
Company or any other Restricted Subsidiary and Indebtedness of the
Company owing to any Restricted Subsidiary;
(v) in the case of any corporation which becomes (by any
manner whatsoever) a Restricted Subsidiary after January 31, 1996,
Indebtedness which is secured by Liens upon, or conditional sale
agreements or other title retention agreements with respect to, its
property which constitutes Principal Property or Restricted Securities,
which Liens exist at the time such corporation becomes a Restricted
Subsidiary;
(vi) guarantees by the Company of Secured Indebtedness and
Attributable Debt of any Restricted Subsidiaries and guarantees by a
Restricted Subsidiary of Secured Indebtedness and Attributable Debt of
the Company and any other Restricted Subsidiaries;
(vii) Indebtedness arising from any Sale and Leaseback
Transaction;
22
-15-
(viii) Indebtedness secured by Liens on property of the
Company or a Restricted Subsidiary in favor of the United States of
America, any State, Territory or possession thereof, or the District of
Columbia, or any department, agency or instrumentality or political
subdivision of the United States of America or any State, Territory or
possession thereof, or the District of Columbia, or in favor of any
other country or any political subdivision thereof, if such
Indebtedness was incurred for the purpose of financing all or any part
of the purchase price or the cost of construction of the property
subject to such Liens; provided, however, that the amount by which the
aggregate principal amount of Indebtedness secured by any such Lien
exceeds the cost to the Company or such Restricted Subsidiary of the
related acquisition or construction shall be considered to be "Secured
Indebtedness"; and
(ix) the replacement, extension or renewal (or successive
replacements, extensions or renewals) of any Indebtedness (in whole or
in part) excluded from the definition of "Secured Indebtedness" by
subparagraphs (i) through (viii) above; provided, however, that no Lien
securing, or conditional sale or title retention agreement with respect
to, such Indebtedness shall extend to or cover any Principal Property
or any Restricted Securities, other than such property which secured
the Indebtedness so
23
-16-
replaced, extended or renewed (plus improvements on or to any such
Principal Property); provided further, however, that to the extent that
such replacement, extension or renewal increases the principal amount
of Indebtedness secured by such Lien or is in a principal amount in
excess of the principal amount of Indebtedness excluded from the
definition of "Secured Indebtedness" by subparagraphs (i) through
(viii) above, the amount of such increase or excess shall be considered
to be "Secured Indebtedness".
In no event shall the foregoing provisions be interpreted to mean or their
operation to cause the same Indebtedness to be included more than once in the
calculation of "Secured Indebtedness" as that term is used in this Indenture.
"Series" or "Series of Securities" means a series of
Securities with substantially identical terms except as to denomination (and
except as may reflect the differences between Registered, definitive,
temporary, permanent, Global Unregistered and uncertificated Securities within
a Series, if any) with a title to distinguish the Securities of the Series from
the Securities of any other Series. The terms for any Series of Securities may
provide that the holders of Securities of such Series shall act as one class
together with the holders of Securities of one or more other Series in voting,
giving notice, waiving, giving directions or taking any other specified,
permitted or authorized action.
"Securities" means the debentures, notes or other obligations
of the Company issued, authenticated and delivered under this Indenture.
"Subsidiary" means any corporation a majority of the Voting
Shares of which are at the time owned or controlled, directly or indirectly, by
the Company or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
"TIA" means the Trust Indenture Act of 1939.
"Trust Indenture Act of 1939" means (except as herein
otherwise expressly provided) the Trust Indenture Act of 1939
24
-17-
(15 U.S.C. Sections 77aaa -7bbbb) as amended, as in force at the date of this
Indenture as originally executed.
"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 Trustee, "Trustee" as used with respect to the
Securities of any Series shall mean the Trustee with respect to that Series.
"U.S. Government Obligations" means:
(i) direct obligations of the United States of America
for the payment of which the full faith and credit of
the United States of America is pledged: or
(ii) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the
United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit
obligation by the United States of America.
"U.S. Person" means a citizen, national or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States or any political subdivision thereof,
or an estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
25
-18-
"Unregistered Security" means any Security issued hereunder
which is not a Registered Security.
"Voting Shares" means as to shares of a particular
corporation, outstanding shares of stock of any class of such corporation
entitled to vote in the election of directors, excluding shares entitled so to
vote only upon the happening of some contingency.
"Yield to Maturity" means the yield to maturity, calculated by
the Company at the time of issuance of a Series of Securities or at the time of
issuance of the Securities of a Series or portion thereof, or, if applicable, at
the most recent determination of interest on such Series or Securities in
accordance with accepted financial practice.
SECTION 1.02. OTHER DEFINITIONS.
Term Section
---- -------
"Event of Default".................................. 6.01
"Legal Holiday"..................................... 10.06
"Paying Agent"...................................... 2.04
"Registrar"......................................... 2.04
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
26
-19-
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 Holder or a
Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the indenture securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
TIA have the meanings assigned to them therein.
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, and, except as may otherwise be
herein expressly provided, the term
"generally accepted accounting principles"
with respect to any computation required or
permitted hereunder shall mean such
accounting principles as are
27
-20-
generally accepted at the date of such
computation; and
(3) "or" is not exclusive.
ARTICLE 2.
THE SECURITIES.
SECTION 2.01. 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 may be Registered Securities and
Unregistered Securities within a Series and the Unregistered Securities may be
subject to such restrictions, and contain such legends, as may be required by
United States laws and regulations. Securities of different Series may differ
in any respect; provided that all Series of Securities shall be equally and
ratably entitled to the benefits of this Indenture.
28
-21-
SECTION 2.02. ESTABLISHMENT OF TERMS AND FORM OF SERIES OF SECURITIES.
(a) At or prior to the issuance of any Series of Securities,
the following shall be established either by or pursuant to a Board Resolution
or by an indenture supplemental hereto:
(1) the title of the Securities of the Series (which
title shall distinguish the Securities of the Series
from the Securities of any other Series and from any
other securities issued by the Company);
(2) any limit upon the aggregate principal amount of
the Securities of the Series which may be
authenticated and delivered under this Indenture
(which limit shall not pertain to Securities
authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Section 2.08,
2.09, 2.11, 3.05 or 9.05);
(3) the date or dates on which the principal of the
Securities of the Series is payable or whether the
Securities of a Series are due upon demand by the
Holder;
(4) the rate or rates at which the Securities of the
Series shall bear interest, if any, or the method of
calculating such rate or rates of interest, the date
or dates from which such
29
-22-
interest shall accrue, the dates on which such
interest shall be payable and, with respect to
Registered Securities, the record date for the
interest payable on any interest payment date;
(5) the place or places where the principal of and
interest on Registered Securities and Unregistered
Securities, if any, of the Series shall be payable;
(6) the period or periods within which, the price or
prices at which, and the terms and conditions upon
which, Securities of the Series may be redeemed, in
whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem
or purchase Securities of the Series pursuant to any
sinking fund or analogous provisions or upon the
happening of a specified event or at the option of a
Holder thereof and the period or periods within
which, the price or prices at which, and the terms
and conditions upon which, Securities of the Series
shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) if in other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the Series shall be issuable;
(9) if other than the principal amount thereof, the
portion of the principal amount of Securities
30
-23-
of the Series which shall be payable upon declaration
of acceleration of the maturity thereof pursuant to
Section 6.01;
(10) whether Securities of the Series shall be
issuable as Registered Securities or Unregistered
Securities (with or without interest coupons), or
both, or whether such Securities shall be
uncertificated, and any restrictions applicable to
the payment, offering, sale or delivery of
Unregistered Securities and whether, and the terms
upon which, Unregistered Securities of a Series may
be exchanged for Registered Securities of the same
Series and vice versa;
(11) whether and under what circumstances the Company
will pay additional amounts on the Securities of that
Series held by a person who is not a U.S. person in
respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay
such additional amounts;
(12) the form of the Securities (or forms thereof if
Unregistered Securities and Registered Securities
shall be issuable in such Series) including such
legends as may be required by United States laws or
regulations, the form of any coupons or temporary
global Security which may be issued and the forms of
any certificates which may be
31
-24-
required hereunder or under United States laws or
regulations in connection with the offering, sale,
delivery or exchange of Unregistered Securities;
(13) the coin or currency in which the Securities of
the Series are denominated, including multiple
currency units;
(14) if other than the coin or currency in which the
Securities of the Series are denominated, the coin or
currency in which payment of the principal of,
premium, if any, or interest on the Securities of the
Series shall be payable;
(15) if the amount of payments of principal of,
premium, if any, or interest on the Securities of the
Series may be determined with reference to one or
more indices, the manner in which such amounts
shall be determined;
(16) whether Securities of the Series are issuable
as, or exchangeable for, one or more Global
Securities and, in such case, the terms upon which
interests in such Global Security or Global
Securities shall be exchangeable by the Company or
the Holder thereof for definitive Securities, and the
identity of the Depositary for such Series; and
(17) any other terms of the Series (which terms shall
not be inconsistent with the provisions of this
Indenture) including any terms which may be required
by or advisable under United States laws
32
-25-
or regulations or advisable in connection with the marketing
of Securities of that Series.
(b) If the terms and form or forms of any Series of Securities
are established by or pursuant to a Board Resolution, the Company shall deliver
a copy of such Board Resolution to the Trustee at or prior to the issuance of
such Series with (1) the form or forms of Security which have been approved
attached thereto, or (2) if such Board Resolution authorizes a specific Officer
or Officers to approve the terms and form or forms of the Securities, a
certificate of such Officer or Officers approving the terms and form or forms of
Security with such form or forms of Securities attached thereto. Such Board
Resolution or certificate may provide general terms or parameters for one or
more Series or for Securities of any Series and may provide that the specific
terms of one or more Series or for Securities of a Series may be determined
in accordance with or pursuant to the Company Order referred to in Section
2.03(d) hereof.
SECTION 2.03. EXECUTION, AUTHENTICATION AND DELIVERY.
(a) Securities shall be executed on behalf of the Company by
its Chairman of the Board of Directors, any Vice-Chairman of the Board of
Directors, the Chief Executive Officer, the President or a Vice President, its
Treasurer or an Assistant Treasurer, and may but need not have its corporate
seal reproduced thereon which may but need not be attested by its Secretary or
an Assistant Secretary. Signatures shall be manual or facsimile. The coupons
of Unregistered Securities shall bear the facsimile signature of the Treasurer
or an Assistant Treasurer of the Company.
33
-26-
(b) If an Officer, an Assistant Treasurer or an Assistant
Secretary whose signature is on a Security or coupon no longer holds that office
at the time the Security is authenticated, the Security or coupon shall be valid
nevertheless.
(c) A Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent and no coupon shall
be valid until the Security to which it appertains has been so authenticated.
Such signature shall be conclusive evidence that the Security has been
authenticated under this Indenture. Each Unregistered Security shall be dated
the date of its original issuance and each Registered Security shall be dated
the date of its authentication.
(d) The Trustee shall authenticate and deliver Securities of
any Series for original issue from time to time in the aggregate principal
amount established for such Series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by a Company Order. The maturity
date, original issue date, interest rate and any other terms of the Securities
of such Series shall be determined by or pursuant to such Company Order and
procedures. If provided for in such procedures, such Company Order may authorize
authentication and delivery pursuant to oral instructions from the Company or
its duly authorized agent, which instructions shall be promptly confirmed in
writing.
The Trustee may conclusively rely on the documents and opinion
delivered pursuant to Section 2.02 and this Section 2.03,
34
-27-
as applicable (unless revoked by superseding comparable documents or opinions)
as to the authorization of the Board of Directors of any Securities delivered
hereunder, the form thereof and the legality, validity, binding effect and
enforceability thereof.
In authenticating Securities under this Indenture 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) the form and general terms of such Securities have
been established in conformity with the provisions of
this Indenture; and
(2) that Securities in such form, when completed as to
specific terms substantially in accordance with the
Board Resolution establishing such form or any
actions taken pursuant thereto (the records of which
actions shall have been evidenced as provided in such
Board Resolution), when executed and delivered by the
Company to the Trustee for authentication, and when
authenticated and delivered by the Trustee in
accordance with the Indenture, all 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,
reorganization and other laws of general
applicability relating to or
35
-28-
affecting the enforcement of creditors' rights and to
general equity principles.
If the terms and form or forms of such Securities have been
established by or pursuant to a Board Resolution as permitted by Section 2.02,
the Trustee shall not be required to authenticate such Securities if the issue
of such Securities pursuant to this Indenture will adversely affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the foregoing, until the Company has delivered
an Officers' Certificate to the Trustee and the Registrar stating that, as a
result of the action described in such Officers' Certificate, the Company would
not suffer adverse consequences under the provisions of United States law or
regulations in effect at the time of the delivery of Unregistered Securities,
(i) delivery of Unregistered Securities will be made only outside the United
States and its possessions and (ii) Unregistered Securities will be released in
definitive form whether in the form of a Global Security or otherwise to the
person entitled to physical delivery thereof only upon presentation of a
certificate in the form prescribed by the Company in such Officers' Certificate.
(e) The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution (or certificate of an
Officer or Officers) or supplemental indenture pursuant to Section 2.02.
36
-29-
(f) The Trustee may appoint an authenticating agent to
authenticate Securities. The fees and expenses of any authenticating agent shall
be paid by the Company. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
(g) The form of the Trustee's Certificate of Authentication to
appear on the Securities shall read as follows:
This is one of the Securities described in the
within-mentioned Indenture.
[_______________________]
As Trustee,
By__________________________
Authorized Signatory
(h) If an authenticating agent has been appointed pursuant to
Section 2.03(f) the form of the Authenticating Agent's Certificate of
Authentication to appear on the Securities shall read as follows:
This is one of the Securities described in the
within-mentioned Indenture.
As Authenticating Agent,
By__________________________
Authorized Officer
37
-30-
SECTION 2.04. REGISTRAR AND PAYING AGENT.
The company shall maintain in the Borough of Manhattan, State
of New York, an office or agency where Registered Securities may be presented
for registration of transfer or for exchange ("Registrar") and an office or
agency where (subject to Sections 2.05 and 2.08) Securities may be presented for
payment or for exchange ("Paying Agent"). With respect to any Series of
Securities issued in whole or in part as Unregistered Securities, the Company
shall maintain one or more Paying Agents located outside the United States and
its possessions and shall maintain such Paying Agents for a period of two years
after the principal of such Unregistered Securities has become due and payable.
During any period thereafter for which it is necessary in order to conform to
United States tax law or regulations, the Company will maintain a Paying Agent
outside the United States and its possessions to which the Unregistered
Securities or coupons appertaining thereto may be presented for payment and will
provide the necessary funds therefor to such Paying Agent upon reasonable
notice. The Registrar shall keep a register with respect to each Series of
Securities issued in whole or in part as Registered Securities and to their
transfer and exchange. The Company may appoint one or more co-Registrars and one
or more additional Paying Agents for each Series of Securities and the Company
may terminate the appointment of any co-Registrar or Paying Agent at any time
upon written notice. The term "Registrar" includes any co-Registrar, except that
any co-Registrar shall not keep the register. The term "Paying Agent" includes
any additional Paying
38
-31-
Agent. The Company shall notify the Trustee of the name and address of any Agent
not a party to this Indenture. If the Company fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such.
SECTION 2.05. PAYMENT ON SECURITIES.
(a) Subject to the following provisions, the Company will pay
to the Trustee the amounts of principal of and interest on the Securities at the
times and for the purposes set forth herein and in the text of the Securities
for each Series, and the Company hereby authorizes and directs the Trustee from
funds so paid to it to make or cause to be made payment of the principal of and
interest, if any, on the Securities and coupons of each Series as set forth
herein and in the text of such Securities and coupons. Except as otherwise
provided with respect to any Series of Securities, the Trustee will arrange
directly with any Paying Agent for the payment, or the Trustee will make
payment, from funds furnished by the Company, of the principal of and interest,
if any, on the Securities and coupons of each Series by check in the currency in
which the Securities are payable.
(b) Interest, if any, on Registered Securities of a Series
shall be paid on each interest payment date for such Series to the Holder
thereof at the close of business on the relevant record dates specified in the
Securities of such Series. The Company may pay such interest by check mailed to
such ▇▇▇▇▇▇'s address as it appears on the register for Securities of such
Series. Principal of Registered Securities shall be payable only
39
-32-
against presentation and surrender thereof at the office of the Paying Agent in
New York, New York, unless the Company shall have otherwise instructed the
Trustee in writing.
(c) To the extent provided in the Securities of a Series, (i)
payments with respect to which coupons have been issued by the Company shall be
paid only against presentation and surrender of the coupons as they mature and
(ii) original issue discount (as defined in Section 1273 of the Internal Revenue
Code of 1986, as amended), if any, on Unregistered Securities with respect to
which coupons have not been issued shall be paid only against presentation and
surrender of such Securities; in either case at the office of a Paying Agent
located outside of the United States and its possessions, unless the Company
shall have otherwise instructed the Trustee in writing. Principal of
Unregistered Securities shall be paid only against presentation and surrender
thereof as provided in the Securities of a Series. If at the time a payment of
principal of or interest, if any, or original issue discount, if any, on an
Unregistered Security or coupon shall become due, the payment of the full amount
so payable at the office or offices of all the Paying Agents outside the United
States and its possession is illegal or effectively precluded because of the
imposition of exchange controls or other similar restrictions on the payment of
such amount in the applicable currency, then the Company may instruct the
Trustee to make such payments at the office of a Paying Agent located in the
United States, provided that provision for such payment in the United States
would not cause such Unregistered Security to be
40
-33-
treated as a "registration-required obligation" under United States law and
regulations.
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust, for the
benefit of Securityholders of any or all Series of Securities, or the Trustee,
all money held by the Paying Agent for the payment of principal or interest on
such Series of Securities, and that the Paying Agent will notify the Trustee of
any default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. If the Company or a subsidiary acts as Paying Agent, it shall
segregate the money held by it for the payment of principal or interest on any
Series of Securities and hold such money as a separate trust fund. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon so doing the Paying Agent shall have no further liability for the
money so paid.
SECTION 2.07. SECURITYHOLDER LISTS; OWNERSHIP OF SECURITIES.
(a) 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 Holders of each Series of Securities. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee semiannually on or before
the last day of June and December in each year, and at such other times as
41
-34-
the Trustee may request in writing, a list, in such form and as of such date as
the Trustee may reasonably require, containing all the information in the
possession or control of the Registrar, the Company or any of its Paying Agents
other than the Trustee as to the names and addresses of Holders of each such
Series of Securities. If there are Unregistered Securities of any Series
outstanding, even if the Trustee is the Registrar, the Company shall furnish to
the Trustee such a list containing such information with respect to Holders of
such Unregistered Securities only.
(b) Ownership of Registered Securities of a Series shall be
proved by the register for such Series kept by the Registrar. Ownership of
Unregistered Securities may be proved by the production of such Unregistered
Securities or by a certificate or affidavit executed by the person holding such
Unregistered Securities or by a depository with whom such Unregistered
Securities were deposited, if the certificate or affidavit is satisfactory to
the Trustee. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Unregistered Security or coupon and the
person in whose name a Registered Security is registered as the absolute owner
thereof for all purposes.
SECTION 2.08. TRANSFER AND EXCHANGE.
(a) Where Registered Securities of a Series are presented to
the Registrar with a request to register their transfer or to exchange them for
an equal principal amount of
42
-35-
Registered Securities of the same Series, date of maturity, interest rate, and
original issue date of other authorized denominations, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met.
(b) If both Registered and Unregistered Securities are
authorized for a Series of Securities and the terms of such Securities permit,
(i) Unregistered Securities may be exchanged for an equal principal amount of
Registered Securities or Unregistered Securities of the same Series, date of
maturity, interest rate, and original issue date in any authorized denominations
upon delivery to the Registrar (or a Paying Agent, if the exchange is for
Unregistered Securities) of the Unregistered Security with all unmatured coupons
and all matured coupons in default appertaining thereto and if all other
requirements of the Registrar (or such Paying Agent) and such Securities for
such exchange are met, and (ii) Registered Securities may be exchanged for an
equal principal amount of Unregistered Securities of the same Series, date of
maturity, interest rate, and original issue date in any authorized denominations
(except that any coupons appertaining to such Unregistered Securities which have
matured and have been paid shall be detached) upon delivery to the Registrar of
the Registered Securities and if all other requirements of the Registrar (or
such Paying Agent) and such Securities for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered
Securities for Registered Securities or Registered
43
-36-
Securities for Unregistered Securities will be subject to the satisfaction of
the provisions of United States law and regulations in effect at the time of
such exchange, and no exchange of Registered Securities for Unregistered
Securities will be made until the Company has notified the Trustee and the
Registrar that, as a result of such exchange, the Company would not suffer
adverse consequences under such law or regulations.
(c) To permit registrations of transfers and exchanges, the
Trustee shall authenticate Securities upon surrender of Securities for
registration of transfer or for exchange as provided in this Section. The
Company will not make any charge for any registration of transfer or exchange
but may require the payment by the party requesting such registration of
transfer or exchange of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
(d) Neither the Company nor the Registrar shall be required
(i) to issue, register the transfer of or exchange Securities of any Series for
the period of 15 days immediately preceding the selection of any such Securities
to be redeemed, or (ii) to register the transfer of or exchange Securities of
any Series selected, called or being called for redemption as a whole or the
portion being redeemed of any such Securities selected, called or being called
for redemption in part.
(e) Unregistered Securities or any coupons appertaining
thereto shall be transferable by delivery.
44
-37-
SECTION 2.09. REPLACEMENT SECURITIES.
(a) If a mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee, the Company shall issue
and the Trustee shall authenticate a replacement Registered Security, if such
surrendered Security was a Registered Security, or a replacement Unregistered
Security with coupons corresponding to the coupons appertaining to the
surrendered Security, if such surrendered Security was an Unregistered Security,
of the same Series, date of maturity, interest rate, and original issue date if
the Trustee's requirements are met.
(b) If the Holder of a Security claims that the Security or
any coupon appertaining thereto has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Registered Security, if such ▇▇▇▇▇▇'s claim pertains to a Registered Security,
or a replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the lost, destroyed or wrongfully taken Unregistered Security or
the Unregistered Security to which such lost, destroyed or wrongfully taken
coupon appertains, if such ▇▇▇▇▇▇'s claim pertains to an Unregistered Security,
of the same Series, date of maturity, interest rate, and original issue date, if
the Trustee's requirements are met; provided, however, that the Trustee or the
Company may require any such Holder to provide to the Trustee or the Company
security or indemnity sufficient in the judgment of the Company and the Trustee
to protect the Company, the Trustee, any Agent or any
45
-38-
authenticating agent from any loss which any of them may suffer if a Security is
replaced. The Company may charge the party requesting a replacement Security for
its expenses in replacing a Security.
(c) Every replacement Security is an additional obligation of
the Company.
SECTION 2.10. OUTSTANDING SECURITIES.
(a) Securities outstanding at any time are all Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, and those described in this Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it
ceases to be outstanding until the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.
(c) If the Paying Agent holds on a redemption date or maturity
date money sufficient to pay all amounts due on Securities of such Series, they
shall cease to be outstanding and interest on them ceases to accrue.
(d) Any acquisition of any Security by the Company or an
Affiliate shall not operate as a redemption or satisfaction of the indebtedness
represented by such Security unless and until the same is cancelled and
delivered to the Trustee or surrendered to the Trustee for cancellation.
(e) In determining whether the Holders of the requisite
principal amount of outstanding Securities of any Series have
46
-39-
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, or whether sufficient funds are available for redemption or for any
other purpose, 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 6.01.
SECTION 2.11. TEMPORARY SECURITIES; GLOBAL SECURITIES.
(a) Until definitive Registered Securities of any Series are
ready for delivery, the Company may prepare and execute and the Trustee shall
authenticate temporary Registered Securities of such Series. Temporary
Registered Securities of any Series shall be substantially in the form of
definitive Registered Securities of such Series but may have variations that the
Company considers appropriate for temporary Securities. Every temporary
Registered Security shall be executed by the Company and authenticated by the
Trustee, and registered by the Registrar, upon the same conditions, and with
like effect, as a definitive Registered Security. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Registered Securities of the same Series, date of maturity, interest rate, and
original issue date in exchange for temporary Registered Securities. All
references herein to "definitive Registered Securities" shall be deemed to apply
equally to permanent global Registered Securities.
47
-40-
(b) Until definitive or permanent global Unregistered
Securities of any Series are ready for delivery, the Company may prepare and
execute and the Trustee shall authenticate one or more temporary Unregistered
Securities, which may have coupons attached or which may be in the form of a
single temporary global Unregistered Security of that Series. The temporary
Unregistered Security or Securities of any Series shall be substantially in the
form approved by or pursuant to a Board Resolution and shall be delivered
outside the United States and its possessions to such person or persons as the
Company shall direct against such certification as the Company may from time to
time prescribe by or pursuant to a Board Resolution. The temporary Unregistered
Security or Securities of a Series shall be executed by the Company and
authenticated by the Trustee upon the same conditions, and with like effect, as
a definitive Unregistered Security of such Series, except as provided herein or
therein. A temporary Unregistered Security or Securities shall be exchangeable
for definitive or permanent global Unregistered Securities at the time and on
the conditions, if any, specified in the temporary Security.
(c) Upon any exchange of a part of a temporary or permanent
global Unregistered Security of a Series for definitive or permanent global
Unregistered Securities of such Series, the temporary or permanent global
Unregistered Security, as the case may be, shall be endorsed by the Trustee or
an authenticating agent for the Trustee to reflect the reduction of its
principal amount by an amount equal to the aggregate principal amount of
48
-41-
definitive or permanent Unregistered Securities, as the case may be, of such
Series so exchanged and endorsed. Upon any exchange of a part of a temporary or
permanent global Registered Security of a Series for definitive or permanent
global Registered Securities of such Series, the temporary or permanent global
Registered Security, as the case may be, shall be endorsed by the Trustee or an
authenticating agent for the Trustee to reflect the reduction of its principal
amount by an amount equal to the aggregate principal amount of definitive or
permanent Registered Securities, as the case may be, of such Series so exchanged
and endorsed.
(d) If the Company shall establish pursuant to Section 2.02
that the Securities of a particular Series are to be issued as one or more
Global Securities, then the Company shall execute and the Trustee shall, in
accordance with Section 2.03 and the Company Order delivered to the Trustee
thereunder, authenticate and deliver to the Depositary or pursuant to the
Depositary's instruction one or more Global Securities. Each Global Security
shall bear a legend substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be transferred, in
whole but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary."
(e) Notwithstanding any other provision of this Section 2.11
or of Section 2.08, except for exchanges of Global Securities as provided in
Section 2.11(c), a Global Security may be transferred, in whole but not in part
and in the manner
49
-42-
provided in Section 2.08, only to another nominee of the Depositary for such
Series, or to a successor Depositary for such Series selected or approved by the
Company or to a nominee of such successor Depositary.
(f) If at any time the Depositary for a Series of Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such Series or, with respect to a Depositary contemplated by clause (ii) of
the definition thereof, if at any time the Depositary for such Series shall no
longer be registered or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation and, in any such
case, a successor Depositary for such Series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.11 shall no longer be applicable
to the Securities of such Series and the Company will execute, and the Trustee
will authenticate and deliver in accordance with a Company Order, Securities of
such Series in definitive registered form without coupons, or in definitive
bearer form with coupons, as applicable, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such Series in exchange for such Global Security.
SECTION 2.12. CANCELLATION.
The Company at any time may deliver Securities and coupons to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Securities and
50
-43-
coupons surrendered to them, for registration of transfer, or for exchange or
payment. The Trustee shall cancel all Securities and coupons surrendered for
registration of transfer, or for exchange, payment or cancellation and may
dispose of cancelled Securities in accordance with its standard procedures. The
Company may not issue new Securities to replace Securities of such Series that
it has paid or delivered to the Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults on a payment of interest on a Series
of Securities, it shall pay the defaulted interest as provided in such
Securities or in any lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed and acceptable to the
Trustee.
ARTICLE 3.
REDEMPTION.
SECTION 3.01. NOTICE TO TRUSTEE.
The Company may, with respect to any Series of Securities,
reserve the right to redeem and pay the Series of Securities or any part
thereof, or may covenant to redeem and pay the Series of Securities or any part
thereof, before maturity at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company wants or is
obligated to redeem all or part of the Series of Securities pursuant to the
terms of such Securities, it shall notify the Trustee of the redemption date and
the principal amount of the
51
-44-
Series of Securities to be redeemed. The Company shall give thirty days (sixty
days if the Trustee is required to make a selection under Section 3.02) advance
notice to the Trustee before the redemption date or such lesser notice as shall
be satisfactory to the Trustee.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
Upon notice that less than all the Securities of a Series of
the same tenor are to be redeemed, the Trustee shall thereupon select the
Securities of the Series of the specified tenor to be redeemed in such manner as
the Trustee shall deem fair and appropriate, such selection to be made from
Securities of the Series of the specified tenor that are outstanding and that
have not previously been called for redemption. Securities of the Series and
portions of them selected by the Trustee shall be in amounts of $1,000 or
integral multiples of $1,000 or, with respect to Securities of any Series
issuable in other denominations pursuant to Section 2.02(a)(8), in amounts equal
to the minimum principal denomination for each such Series and integral
multiples thereof. Provisions of the Indenture that apply to Securities of a
Series called for redemption also apply to portions of Securities of that Series
called for redemption. The Trustee shall promptly notify the Company in writing
of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION.
(a) At least 30 days but not more than 90 days before a
redemption date, the Company shall mail a notice of redemption by
52
-45-
first-class mail to each Holder of Registered Securities that are to be
redeemed.
(b) If Unregistered Securities are to be redeemed, notice of
redemption shall be published in an Authorized Newspaper in The City of New
York, and if such Securities to be redeemed are listed on the London Stock
Exchange, London, and, if such Securities to be redeemed are listed on the
Luxembourg Stock Exchange, Luxembourg, once in each of four successive calendar
weeks, the first publication to be not less than 30 nor more than 90 days before
the redemption date.
(c) All notices shall identify the Series of Securities to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less than all the outstanding Securities of a
Series are to be redeemed, the identification (and,
in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed;
(4) the name and address of the Paying Agent;
(5) the Securities of the Series called for
redemption and that all unmatured coupons, if any,
appertaining thereto must be surrendered to the
Paying Agent to collect the redemption price;
53
-46-
(6) that interest on Securities of the Series called
for redemption ceases to accrue on and after the
redemption date; and
(7) if the redemption is for a mandatory or optional
sinking fund payment.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed or published, Securities
of a Series called for redemption become due and payable on the redemption date.
Upon surrender to the Paying Agent of such Securities together with all
unmatured coupons, if any, appertaining thereto, such Securities shall be paid
at the redemption price plus accrued interest to the redemption date, but
regular installments of interest due on or prior to the redemption date will be
payable, in the case of Unregistered Securities, to the bearers of the coupons
for such interest upon surrender thereof, and, in the case of Registered
Securities, to the Holders of such Securities of record at the close of business
on the relevant record dates.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit
with the Trustee money sufficient to pay the redemption price of and (unless the
redemption date shall be an interest
54
-47-
payment date) interest accrued to the redemption date on all Securities to be
redeemed on that date.
Upon surrender of a Security that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder of that
Security a new Security or Securities of the same Series, the same form and the
same date of maturity, interest rate, and original issue date in authorized
denominations equal in aggregate principal amount to the unredeemed portion of
the Security surrendered.
SECTION 3.06. MANDATORY AND OPTIONAL SINKING FUNDS.
The minimum amount of any sinking fund payment provided for by
the terms of any Series of Securities is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of any Series of Securities is herein referred to as an
"optional sinking fund payment". The date on which a sinking fund payment is to
be made is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any Series of Securities in cash, the Company may
at its option (a) deliver to the Trustee Securities of such Series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such
Series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to
55
-48-
Section 2.12, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such Series (not previously so credited) redeemed by the Company
through any optional redemption provision contained in the terms of such Series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any Series, the Company will deliver to the Trustee a written
statement signed by an authorized officer of the Company (a) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of cash
and the portion to be satisfied by credit of Securities of such Series, (b)
stating that none of the Securities of such Series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such Series have occurred (which have not been waived or
cured) and are continuing, (d) stating whether or not the Company intends to
exercise its right to make an optional sinking fund payment with respect to such
Series and, if so, specifying the amount of such optional sinking fund payment
which the Company intends to pay on or before the next succeeding sinking fund
payment date, and (e) specifying such sinking fund payment date. Any Securities
of such Series to be credited and required to be delivered to the Trustee in
order for the Company to be entitled to credit therefor as aforesaid which have
not theretofore been delivered to the Trustee shall be
56
-49-
delivered for cancellation pursuant to Section 2.12 to the Trustee with such
written statement (or reasonably promptly thereafter if acceptable to the
Trustee). Such written statement shall be irrevocable and upon its receipt by
the Trustee the Company shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or before any
such sixtieth day, to deliver such written statement and Securities specified in
this paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Company (i) that the
mandatory sinking fund payment for such Series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such Series in respect thereof and (ii) that the
Company will make no optional sinking fund payment with respect to such Series
as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Company shall so request) with
respect to the Securities of any particular Series, such cash shall be applied
on the next succeeding sinking fund payment date to the redemption of Securities
of such Series at the sinking fund redemption price together with accrued
interest to the date fixed for redemption. If such amount shall be $50,000 or
less and the Company makes no
57
-50-
such request then it shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section 3.02, for
redemption on such sinking fund payment date a sufficient principal amount of
Securities of such Series to absorb said cash, as nearly as may be possible, and
shall (if requested in writing by the Company) inform the Company of the serial
numbers of the Securities of such Series (or portions thereof) so selected.
Securities of any Series which are (a) owned by the Company or an entity known
by the Trustee to be directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, as shown by the
Security register, and not known to the Trustee to have been pledged or
hypothecated by the Company or any such entity or (b) identified in an Officers'
Certificate at least 60 days prior to the sinking fund payment date as being
beneficially owned by, and not pledged or hypothecated by, the Company or an
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company shall be excluded from Securities of
such Series eligible for selection for redemption. The Trustee, in the name and
at the expense of the Company (or the Company, if it shall so request the
Trustee in writing) shall cause notice of redemption of the Securities of such
Series to be given in substantially the manner provided in Section 3.03 (and
with the effect provided in Section 3.04) for the redemption of Securities of
such Series in part at the option of the Company. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
58
-51-
Series shall be added to the next cash sinking fund payment for such Series and,
together with such payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular Series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such Series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such Series at maturity.
At least one business day before each sinking fund payment
date, the Company shall pay to the Trustee in cash or shall otherwise provide
for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a Series with sinking fund moneys or mail any notice of redemption
of Securities for such Series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default with respect to such Securities except that, where the mailing
of notice of redemption of any Securities shall theretofore have been made, the
Trustee shall redeem or cause to be redeemed such Securities, provided that it
shall have received from the Company a sum sufficient for such redemption.
Except as aforesaid, any moneys in the sinking fund for such Series at the time
when any such default or Event of Default shall occur, and any moneys thereafter
paid into the sinking fund,
59
-52-
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article Six and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 6.06 or the default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
ARTICLE 4.
COVENANTS.
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided herein and in the Securities.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay the installment. If the Securities of a Series provide for
the payment of additional amounts as contemplated by Section 2.02(a)(11), 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 maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal and
any premium or interest if there has been any change with respect to the matters
set forth in the
60
-53-
below-mentioned Officers' Certificate, the Company will furnish the Trustee and
the Company's 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 of and any premium or
interest on the Securities of that Series shall be made to Holders of Securities
of that Series or any related coupons who are not U.S. persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of the 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 such additional amounts as may be required pursuant to the terms
applicable to such Series. 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. REPORTS BY THE COMPANY.
The Company covenants:
(a) to file with the Trustee, within 15 days after the Company
is required to file the same with the SEC, copies of the annual reports and of
the information, documents and other reports
61
-54-
(or copies of such portions of any of the foregoing as the SEC may from time to
time by rules and regulations prescribe) which the Company may be required to
file with the SEC pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the SEC, in accordance with rules and regulations
prescribed from time to time by the SEC, such of the supplementary and periodic
information, documents and reports which may be required pursuant to section 13
of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) to file with the Trustee and the SEC, in accordance with
the rules and regulations prescribed from time to time by the SEC, such
additional information, documents, and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations; and
(c) to transmit by mail to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities as
have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, within 30 days after the filing
thereof with the Trustee, and to all Holders whose names appear on the list
furnished to the Trustee by the Company under Section
62
-55-
2.07(a), such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section 4.02 as
may be required by rules and regulations prescribed from time to time by the
SEC.
SECTION 4.03. LIMITATIONS ON LIENS.
The Company will not create, assume, incur or guarantee, and
will not permit any Restricted Subsidiary to create, assume, incur or guarantee,
any Secured Indebtedness without making provision whereby all the Securities of
each Series shall be secured equally and ratably with (or prior to) such Secured
Indebtedness (together with, if the Company shall so determine, any other
Indebtedness of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to the Securities of each Series) so
long as such Secured Indebtedness shall be outstanding unless such Secured
Indebtedness, when added to (a) the aggregate amount of all Secured Indebtedness
then outstanding (not including in this computation Secured Indebtedness if the
Securities are secured equally and ratably with (or prior to) such Secured
Indebtedness and further not including in this computation any Secured
Indebtedness which is concurrently being retired) and (b) the aggregate amount
of all Attributable Debt then outstanding pursuant to Sale and Leaseback
Transactions entered into by the Company after January 31, 1996, or entered into
by a Restricted Subsidiary after January 31, 1996, or, if later, the date on
which it became a Restricted Subsidiary (not including in this
63
-56-
computation any Attributable Debt which is concurrently being retired), would
not exceed 15% of Consolidated Net Tangible Assets.
SECTION 4.04. LIMITATIONS ON SALES AND LEASEBACKS.
The Company will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction unless (a) the sum
of (i) the Attributable Debt to be outstanding pursuant to such Sale and
Leaseback Transaction, (ii) all Attributable Debt then outstanding pursuant to
all other Sale and Leaseback Transactions entered into by the Company after
January 31, 1996, or entered into by a Restricted Subsidiary after January
31, 1996, or, if later, the date on which it became a Restricted Subsidiary and
(iii) the aggregate of all Secured Indebtedness then outstanding (not including
in this computation Secured Indebtedness if the Securities of each Series are
secured equally and ratably with (or prior to) such Secured Indebtedness) would
not exceed 15% of Consolidated Net Tangible Assets, or (b) an amount equal to
the greater of (i) the net proceeds to the Company or the Restricted Subsidiary
of the sale of the Principal Property sold and leased back pursuant to such Sale
and Leaseback Transaction and (ii) the amount of Attributable Debt to be
outstanding pursuant to such Sale and Leaseback Transaction is applied to the
retirement of Funded Debt of the Company or any Restricted Subsidiaries (other
than Funded Debt which is subordinate to the Securities of each Series or which
is owing to
64
-57-
the Company or any Restricted Subsidiaries) within 180 days after the
consummation of such Sale and Leaseback Transaction.
SECTION 4.05. WAIVER OF COVENANTS.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 4.03 and 4.04 hereof with
respect to the Securities of one or more Series if before or after the time for
such compliance the holders of a majority in aggregate principal amount of the
Securities of all such Series at the time outstanding treating all such Series
as a class shall, by action of such Securityholders in accordance with this
Indenture, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect (x) any other Series of Securities or (y) such covenant or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and duties of the Trustee in respect
of any such covenant or condition shall remain in full force and effect.
ARTICLE 5.
SUCCESSOR CORPORATION.
SECTION 5.01. CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
Nothing contained in this Indenture or in any of the
Securities of any Series shall prevent any consolidation of the Company with, or
merger of the Company into, any other corporation or corporations (whether or
not affiliated with the Company), or successive consolidations or mergers to
which the Company or its
65
-58-
successor or successors shall be a party or parties, or shall prevent any sale
or conveyance of the property of the Company (including stock of subsidiaries)
as an entirety or substantially as an entirety to any other corporation (whether
or not affiliated with the Company) authorized to acquire and own or operate the
same; provided, however, and the Company hereby covenants and agrees, that upon
any such consolidation, merger, sale or conveyance, the due and punctual payment
of the principal of (and premium, if any) and interest on all of the Securities
of each Series, according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company, shall be expressly assumed, by
supplemental indenture, satisfactory in form to the Trustee, executed and
delivered to the Trustee by the corporation formed by such consolidation, or
into which the Company shall have been merged, or which shall have acquired such
property.
SECTION 5.02. ASSUMPTION AND SUBSTITUTION.
In case of any such consolidation, merger, sale or conveyance,
and following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein.
Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of Lucent Technologies Inc., any or
all of the Securities issuable pursuant to the provisions of Section 2.01 which
theretofore shall not have
66
-59-
been signed by the Company and delivered to the Trustee; and, upon the order of
such successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to such provisions and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee on its behalf for that purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself any other
corporation or entity (whether or not affiliated with the Company) or acquiring
by purchase or otherwise all or any part of the property of any other
corporation or entity (whether or not affiliated with the Company).
SECTION 5.03. OPINION OF COUNSEL.
The Trustee, subject to the provisions of Sections 7.01 and
7.02, may receive an Opinion of Counsel as conclusive evidence
67
-60-
that any consolidation, merger, sale or conveyance and any such assumption
complies with the provisions of this Article 5.
ARTICLE 6.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 6.01. EVENTS OF DEFAULT; ACCELERATION OF MATURITY; WAIVER OF DEFAULT.
In case one or more of the following Events of Default shall
have occurred and be continuing with respect to the Securities of any Series
("Events of Default"), that is to say:
(a) default in the payment of any installment of interest
upon any of the Securities of that Series as and when
the same shall become due and payable, and
continuance of such default for a period of 90 days;
or
(b) default in the payment of the principal of (or
premium, if any, on) any of the Securities of that
Series as and when the same shall become due and
payable either at maturity, upon redemption, by
declaration or otherwise; or
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on
the part of the Company in the Securities of that
Series, in this Indenture contained or in any
supplemental indenture under which the Securities of
that Series have been issued, excluding any failure
which resulted from a change in generally accepted
accounting principles, for a period of 90
68
-61-
days after the date on which written notice of such
failure (specified as a "Notice of Default"),
requiring the Company to remedy the same, shall have
been given to the Company by the Trustee or to the
Company and the Trustee by Holders of at least
twenty-five percent in aggregate principal amount of
the Securities of that Series at the time
outstanding; or
(d) a court or governmental agency having jurisdiction in
the premises shall enter a decree or order for relief
in respect of the Company in an involuntary case
under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or
similar official) of the Company or for any
substantial part of its property or ordering the
winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(e) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or
taking possession by a receiver,
69
-62-
liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or
for any substantial part of its property or make any
general assignment for the benefit of creditors; or
the Company shall admit in writing its inability to
pay its debts generally as they become due, or
corporate action shall be taken by the Company in
furtherance of any of the aforesaid purposes; or
(f) any other Event of Default provided in the applicable
resolution of the Board of Directors or in the
supplemental indenture under which such Series of
Securities is issued, as the case may be, as
contemplated by Section 2.02.
then and in each and every such case, unless the principal of all the Securities
of that Series shall have already become due and payable, either the Trustee or
the Holders of not less than twenty-five percent in aggregate principal amount
of the Securities of that Series then outstanding hereunder, by notice in
writing to the Company (and to the Trustee if given by Securityholders), may
declare the principal (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 that Series) of all the Securities of that Series to be due and
payable immediately, and upon any such declaration the same (or, in the case of
Original Issue Discount Securities, such specified amount) shall become and
shall be immediately due and payable,
70
-63-
anything in this Indenture, in any supplemental indenture under which the
Securities of that Series have been issued or in the Securities of that Series
contained to the contrary notwithstanding. This provision, however, is subject
to the condition that if, at any time after the principal of the Securities of
that Series (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 that Series) shall have been so declared and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Company shall pay, or shall deposit with
the Trustee a sum sufficient to pay, all matured installments of interest upon
all the Securities of that Series and the principal of (and premium, if any, on)
any and all Securities of that Series which shall have become due otherwise than
by declaration, with interest upon such principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under applicable law)
upon any overdue installments of interest at the same rate of interest or Yield
to Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of that Series, to the date of such payment or deposit, and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or bad faith,
and if any and all defaults under this Indenture with respect to the Securities
of that Series, other than the
71
-64-
nonpayment of the principal of the Securities of that Series which shall have
become due by declaration, shall have been remedied -- then and in every such
case the Holders of a majority in aggregate principal amount of the Securities
of that Series then outstanding by written notice to the Company and to the
Trustee may waive all defaults and rescind and annul such declaration and its
consequences; but no such waiver or rescission or annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such waiver or rescission or annulment or for any other
reason or shall have been determined adversely to the Trustee, then and in every
such case the Company,
72
-65-
the Trustee and the Holders of the Securities shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Company, the Trustee and the Holders of the Securities shall continue as
though no such proceedings had been taken.
SECTION 6.02. COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE
MAY PROVE DEBT.
The Company covenants that (1) in case default shall be made
in the payment of any installment of interest on any of the Securities of any
Series, as and when the same shall become due and payable, and such default
shall have continued for a period of 90 days, or (2) in case default shall be
made in the payment of the principal of (or premium, if any, on) any of the
Securities of any Series when the same shall have become due and payable,
whether upon maturity or upon redemption or upon declaration or otherwise --
then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the Holders of the Securities of such Series, the whole amount that
then shall have become due and payable on all Securities of such Series for
principal (and premium, if any) and interest, with interest upon any overdue
principal (and premium, if any) and (to the extent that payment of such interest
is enforceable under applicable law) upon any overdue installments of interest
at the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such Series,
and, in addition thereto, such further amount as shall be
73
-66-
sufficient to cover reasonable compensation to the Trustee, its agents and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree and may
enforce any such judgment or final decree against the Company or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Company or other obligor upon such Securities wherever situated
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Company or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or State bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or its property or such other
obligor, or in case of any other judicial proceedings relative to the Company or
other obligor upon the Securities of any Series, or to the creditors or property
of the Company or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and
74
-67-
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 6.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, (a) to file and prove a claim or claims for the whole
amount of principal (or, if the Securities of any Series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such Series), premium, if any, and interest owing and unpaid in
respect of the Securities of any Series and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee, its
agents and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Company or other obligor upon the Securities of any
Series, or to the creditors or property of the Company or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on behalf of
the Holders of the Securities of any Series in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions in comparable
proceedings, and (c) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf
and any
75
-68-
receiver, assignee, liquidator, custodian, trustee or other similar official is
hereby authorized by each of the Securityholders to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay the Trustee such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any Series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and to assert claims under this
Indenture, or under any of the Securities of any Series or coupons, if any,
appertaining thereto, may be enforced by the Trustee without the possession of
any of the Securities of such Series or of any coupons appertaining thereto or
the production thereof on any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall be
for the ratable benefit of the
76
-69-
holders of the Securities or coupons appertaining to such Securities in respect
of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any holders of such Securities or coupons parties to any such proceedings.
In the case of a default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture, or in aid of the exercise
of any power granted in this Indenture, or otherwise, and the Trustee may
enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 6.03. APPLICATION OF PROCEEDS.
Any moneys collected by the Trustee pursuant to Section 6.02
in respect of any Series of Securities shall be applied in the order following,
at the date or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal (or premium, if any) or interest, upon
presentation of the several Securities and coupons, if any, appertaining to such
77
-70-
Securities in respect of which moneys have been collected and making a notation
thereon the payment if only partially paid, and upon surrender thereof if fully
paid:
First: To the payment of costs and expenses of collection,
reasonable compensation to the Trustee, its agents and counsel, and all
other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith;
Second: In case the principal of the Securities of such Series
in respect of which moneys have been collected shall not have become
due, to the payment of interest on the Securities of such Series in
default, in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest, at
the same rate as the rate of interest or Yield to Maturity (in the case
of Original Issue Discount Securities) specified in the Securities of
such Series, such payments to be made ratably to the persons entitled
thereto;
Third: In case the principal of the Securities of such Series
in respect of which moneys have been collected shall have become due by
declaration or otherwise, to the payment of the whole amount then owing
and unpaid upon all of the Securities of such Series for principal (and
premium, if any) and interest, with interest on the overdue principal
(and premium, if any), and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of
78
-71-
interest, at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in the
Securities of such Series, and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such Series, then to the payment of such principal (and
premium, if any) and interest or Yield to Maturity without preference
or priority of principal (and premium if any) over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal (and
premium, if any), or of any installment of interest over any other
installment of interest, or of any Security of such Series over any
other Security of such Series, ratably to the aggregate of such
principal (and premium, if any) and interest or Yield to Maturity; and
Fourth: To the Company.
SECTION 6.04. LIMITATION ON SUITS BY SECURITYHOLDERS.
No Holder of any Security of any Series or any coupon
appertaining thereto shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a receiver, trustee, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of an Event of Default
and unless also the holders of not less than twenty-five percent in aggregate
principal amount of the
79
-72-
Securities of such Series then outstanding shall have made written request upon
the Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have failed to institute any such action
or proceedings and no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 6.06; it being understood and
intended and being expressly covenanted by the taker and holder of every
Security or coupon with every other taker and holder and the Trustee that no one
or more holders of Securities of any Series or coupons appertaining thereto
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of Securities or coupons, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Securities of the applicable Series and
coupons, if any, appertaining thereto. For the protection and enforcement of the
provisions of this Section 6.04, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision in this Indenture or any
provision of any Security, the right of any Holder of any
80
-73-
Security to receive payment of the principal of, premium, if any and interest on
such Security, on or after the respective due dates expressed in such Security,
or any redemption date, and the right of any Holder of a coupon to receive
payment of interest due as provided in such coupon, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such holder.
SECTION 6.05. POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF
DEFAULT.
All powers and remedies given by this Article Six to the
Trustee or to the Securityholders or the Holders of any coupons shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any thereof
or of any other powers and remedies available to the Trustee or the
Securityholders or the Holders of any coupons, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder of the Securities or coupons in exercising any right or power
accruing upon any default occurring and continuing as aforesaid shall impair any
such right or power or shall be construed to be a waiver of any such default or
an acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article Six or by law to the Trustee or to the
Securityholders or the Holders of any coupons may be exercised from time to
time, and as often as
81
-74-
shall be deemed expedient, by the Trustee or by the Securityholders or the
Holders of any coupons.
SECTION 6.06. CONTROL BY SECURITYHOLDERS; WAIVER OF DEFAULTS.
The holders of a majority in aggregate principal amount of the
Securities of each Series affected (with each Series voting as a separate class)
at the time outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such Series by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 7.01)
the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forebearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all Series so affected not joining in
the giving of said direction, it being understood that (subject to Section 7.01)
the Trustee shall have no duty to ascertain whether or not such actions or
82
-75-
forebearances are unduly prejudicial to such holders. Nothing in this Indenture
shall impair the right of the Trustee in its discretion to take any action
deemed proper by the Trustee and which is not inconsistent with such direction
or directions by Securityholders. Prior to the declaration of the maturity of
the Securities of any Series as provided in Section 6.01, the Holders of a
majority in aggregate principal amount of the Securities of such Series at the
time outstanding may on behalf of the holders of all the Securities of such
Series waive any past default hereunder with respect to such Series and its
consequences, except a default in the payment of the principal of (or premium,
if any) or interest on any of the Securities of such Series. In the case of any
such waiver, the Company, the Trustee and the holders of the Securities of such
Series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
SECTION 6.07. RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING
TO PAY COSTS.
All parties to this Indenture agree, and each Holder of any
Security or coupon appertaining thereto, by such ▇▇▇▇▇▇'s acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay
83
-76-
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 6.07 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of Securityholders of any Series,
holding in the aggregate more than ten percent in principal amount of the
Securities of such Series outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security on or after the due date expressed
in such Security.
ARTICLE 7.
TRUSTEE.
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise its rights and powers under this Indenture and use the
same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that
are specifically set forth in the Indenture and no implied
84
-77-
covenants or obligations shall be read into this Indenture against the Trustee.
(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;
but in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(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.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible 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 6.06.
85
-78-
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to the provisions of this Section.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree 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.
Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order, demands notice or other
communication of the Company mentioned herein shall be sufficiently evidenced by
Company Order and any resolution of the Board of Directors may be sufficiently
evidenced to the Trustee by
86
-79-
a copy thereof certified by a Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or thereby; and
(e) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
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 may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
87
-80-
SECTION 7.04. TRUSTEE DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities. It shall not be accountable for
the Company's use of the proceeds from the Securities or for moneys paid over to
the Company pursuant to the Indenture, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULT.
If a Default occurs and is continuing with respect to the
Securities of any Series and if it is known to the Trustee, the Trustee shall
mail to each Holder of a Security of that Series entitled to receive reports
pursuant to Section 4.02(c) (and, if Unregistered Securities of that Series are
outstanding, shall cause to be published at least once in an Authorized
Newspaper in The City of New York, and if such Securities are listed on the
London Stock Exchange, London, and, if such Securities are listed on The
Luxembourg Stock Exchange, Luxembourg) notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment of the principal of
or interest on the Securities of any Series, the Trustee may withhold the notice
if and so long as its Board of Directors, the executive Committee, or a Trust
Committee of directors or Responsible Officers in good faith determines that
withholding such notice is in the interests of Securityholders of that Series.
88
-81-
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
(a) Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder entitled
to receive reports pursuant to Section 4.02(c) a brief report dated as of such
date that complies with TIA Section 313(a). The Trustee also shall comply with
TIA Section 313(b).
(b) At the time that it mails such a report to
Securityholders, the Trustee shall file a copy of that report with the SEC and
with each stock exchange on which the Securities are listed. The Company shall
provide written notice to the Trustee when the Securities of any Series are
listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
(a) The Company shall pay to the Trustee from time to time
such compensation for its services as is agreed upon in writing between the
Company and the Trustee. 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 in connection with the performance of its duties under this
Indenture. Such expenses shall include the reasonable compensation and expenses
of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee against any loss
or liability incurred by it arising out of or in connection with its acceptance
or administration of the trust or trusts
89
-82-
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel provided that
the Trustee shall pay the fees and expenses of such counsel. The Company need
not pay for any settlement made without its consent.
(c) The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith.
(d) To secure the payment obligations of the Company pursuant
to this Section, the Trustee shall have a lien prior to the Securities of any
Series on all money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Securities of a
Series.
(e) If the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(d) or (e) occurs, such expenses
and the compensation for such services are intended to constitute expenses of
administration under any Federal bankruptcy, insolvency or related law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
(a) The resignation or removal of the Trustee and the
appointment of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this Section.
(b) The Trustee may resign with respect to the Securities of
any Series by so notifying the Company. The Holders
90
-83-
of a majority in principal amount of the Securities of any Series may remove the
Trustee with respect to that Series by so notifying the Trustee and the Company
in writing and may appoint a successor Trustee for such Series with the
Company's consent. The Company may remove the Trustee with respect to Securities
of any Series 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 public officer takes charge of
the Trustee or its property or;
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to Securities of
any Series, the Company shall promptly appoint a successor Trustee for such
Series.
(d) If a successor Trustee with respect to the Securities of
any Series does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of a
majority in principal amount of the Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(e) If the Trustee with respect to the Securities of any
Series fails to comply with Section 7.10, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the removal of such
Trustee and the appointment of a successor Trustee.
91
-84-
(f) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee for any Series of Securities
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the retiring Trustee with respect to all Series of
Securities for which the successor Trustee is to be acting as Trustee under this
indenture. The retiring Trustee shall promptly transfer all property held by it
as Trustee with respect to such Series of Securities to the successor Trustee
subject to the lien provided for in Section 7.07. The Company shall give notice
of each appointment of a successor Trustee for any Series of Securities by
publishing notice of such event once in an Authorized Newspaper in The City of
New York, and if Securities of that Series are listed on the London Stock
Exchange, London, and if Securities of that Series are listed on the Luxembourg
Stock Exchange, Luxembourg, and by mailing written notice of such event by
first-class mail to the Holders of Securities of such Series entitled to receive
reports pursuant to Section 4.02(c).
(g) All provisions of this Section 7.08 except subparagraphs
(b)(1) and (e) and the words "subject to the lien provided for in Section 7.07"
in subparagraph (f) shall apply also to any Paying Agent located outside the
U.S. and its possessions as required by Section 2.04.
(h) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) Series, the
Company, the retiring Trustee and such
92
-85-
successor Trustee shall execute and deliver a supplemental indenture wherein
such successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, such successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those Series
to which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to the Securities of a Series, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that the trusteeship for Securities of that or those Series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE, AGENTS BY MERGER, ETC.
If the Trustee or any Agent consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
business assets to, another corporation, the
93
-86-
successor corporation, without any further act, shall be the successor Trustee
or Agent, as the case may be.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee with respect to
each Series of Securities who satisfies the requirement of TIA Section
310(a)(1). The Trustee shall always have a combined capital and surplus of at
least $100,000,000 as set forth in its most recent published annual report of
condition. The Trustee for the Securities of any Series issued hereunder shall
be subject to the provisions of Section 310(b) of the TIA during the period of
time provided for therein. In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the TIA with respect to the Securities
of any Series, there shall be excluded 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 Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
94
-87-
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8.
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
UNCLAIMED MONIES.
SECTION 8.01. SATISFACTION AND DISCHARGE OF INDENTURE.
If at any time (a) the Company shall have delivered to the
Trustee cancelled or for cancellation all Securities of any Series theretofore
authenticated and all unmatured coupons, if any, appertaining thereto (other
than any Securities of such Series and coupons appertaining thereto which shall
have been destroyed, lost or stolen and which shall have been replaced as
provided in Section 2.09), or (b) in the case of any Series of Securities where
the exact amount (including currency of payment) of principal of and interest
due on which can be determined at the time of making the deposit referred to in
clause (ii) below, (i) all the Securities of such Series and all unmatured
coupons appertaining thereto, not theretofore delivered to the Trustee cancelled
or for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Company shall deposit or cause to be
95
-88-
deposited with the Trustee as trust funds the entire amount in cash sufficient
to pay at maturity or upon redemption all such Securities not theretofore
delivered to the Trustee cancelled or for cancellation, including principal (and
premium, if any) and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, but excluding, however, the
amount of any moneys for the payment of principal of (and premium, if any) or
interest on the Securities (1) theretofore deposited with the Trustee and repaid
by the Trustee to the Company in accordance with the provisions of Section 8.05,
or (2) paid to any State or to the District of Columbia pursuant to its
unclaimed property or similar laws, and if in either case the Company shall also
pay or cause to be paid all other sums payable hereunder by the Company, then
this Indenture shall cease to be of further effect with respect to the
Securities of such Series (except as to the provisions applicable to transfers
and exchanges of Securities of such Series and any coupons appertaining thereto
and the obligations of the Company to the Trustee under Section 7.07 which shall
survive) and the Trustee on demand of and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to the Securities of such Series. The
Company agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection with this
Indenture or the Securities.
96
-89-
SECTION 8.02. DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT OBLIGATIONS.
In the case of any Series of Securities the exact amount
(including the currency of payment) of principal of and interest due on which
can be determined at the time of making the deposit referred to in clause (1)
below at the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to the
Securities of such Series and coupons, if any, appertaining thereto on the 91st
day after the applicable conditions set forth below have been satisfied or (b)
the Company shall cease to be under any obligation to comply with any term,
provision or condition set forth in Sections 4.03, 4.04 and 5.01 with respect to
the Securities of such Series at any time after the applicable conditions set
forth below have been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds
in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of
the Securities of such Series and coupons
appertaining thereto (i) money in an amount, or (ii)
in the case of any Series of Securities the payments
on which may only be made in U.S. dollars, U.S.
Government Obligations which
97
-90-
through the payment of interest and principal in
respect thereof in accordance with their terms will
provide, not later than one day before the due date
of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, in the
opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to
pay and discharge each installment of principal of,
and interest on, the outstanding Securities of such
Series and coupons appertaining thereto on the dates
such installments of interest or principal are due;
(2) if the Securities of such Series are then listed on
the New York Stock Exchange, the Company shall have
delivered to the Trustee an Opinion of Counsel to the
effect that the Company's exercise of its option
under this paragraph would not cause such Securities
to be delisted;
(3) no Event of Default or event (including such deposit)
which with notice or lapse of time would become an
Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on
the date of such deposit;
98
-91-
(4) the Company shall have delivered to the Trustee an
opinion of independent counsel satisfactory to the
Trustee to the effect that Holders of the Securities
of such Series and coupons appertaining thereto will
not recognize income, gain or loss for Federal income
tax purposes as a result of the Company's exercise of
its option under this Section 8.02 and will be
subject to Federal income tax on the same amount and
in the same manner and at the same times as would
have been the case if such option had not been
exercised, which opinion may, but is not required to,
include or be based upon a ruling to that effect
received from or published by the Internal Revenue
Service.
"Discharged" means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by, and obligations under the Securities of
such Series and coupons appertaining thereto and to have satisfied all the
obligations under this Indenture relating to the Securities of such Series and
coupons appertaining thereto (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except (A) the rights
of holders of the Securities of such Series and coupons appertaining thereto to
receive, from the trust fund described in clause (1) above, payment of the
principal of and the interest on such Securities of such Series and coupons
99
-92-
when such payments are due; (B) the Company's obligations with respect to such
Securities of such Series under Sections 2.04, 2.08, 2.09, 2.11 and 8.03; and
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder.
SECTION 8.03. APPLICATION OF MONEYS DEPOSITED.
All moneys deposited with the Trustee pursuant to Section 8.01
or 8.02 shall be held in trust and applied by it to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent), to the Holders of the particular Securities of such Series and of
coupons appertaining thereto for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due, and to become due thereon
for principal (and premium, if any) and interest.
SECTION 8.04. REPAYMENT OF MONEYS HELD.
In connection with the satisfaction and discharge of this
Indenture with respect to the Securities of any Series, all moneys then held by
any Paying Agent under the provisions of this Indenture with respect to such
Series of Securities shall, upon demand of the Company, be repaid to it or paid
to the Trustee and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
100
-93-
SECTION 8.05. RETURN OF MONEYS UNCLAIMED FOR TWO YEARS.
Any moneys deposited with or paid to the Trustee or any Paying
Agent pursuant to any provision of this Indenture for payment of the principal
of (and premium, if any,) or interest on the Securities of any Series and any
coupon appertaining thereto and not applied but remaining unclaimed for two
years after the date upon which the principal of (and premium, if any) or
interest on such Securities or coupons, as the case may be, shall have become
due and payable, shall be repaid to the Company by the Trustee or such Paying
Agent on demand; and the Holder of any of the Securities of such Series or
coupons appertaining thereto shall thereafter look only to the Company for any
payment which such Holder may be entitled to collect and all liability of the
Trustee or any Paying Agent with respect to such moneys shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment with respect to moneys deposited with it for any
payment (a) in respect of Registered Securities of any Series, shall at the
expense of the Company, mail by first-class mail to holders of such Securities
at their address as they shall appear on the Security register, addresses as
they shall appear on the Security register, and (b) in respect of Unregistered
Securities of any Series, shall at the expense of the Issuer cause to be
published once, in an Authorized Newspaper in the Borough of Manhattan, The City
of New York, and if the Securities of such Series are listed
101
-94-
on the London Stock Exchange, once in an Authorized Newspaper in London, and if
the Securities of such Series are listed on the Luxembourg Stock Exchange, once
in an Authorized Newspaper in Luxembourg, notice, that such moneys remain and
that, after a date specified therein, which shall not be less than thirty days
from the date of such mailing or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.06. INDEMNITY FOR GOVERNMENT OBLIGATIONS.
The Company shall pay and shall indemnify the Trustee and each
Securityholder of each Series in respect of which the deposit shall have been
made against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such obligations.
ARTICLE 9.
AMENDMENTS AND WAIVERS.
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may enter into one or more
supplemental indentures without consent of any Securityholder for any of the
following purposes:
(1) to cure any ambiguity, defect or inconsistency herein
or in the Securities of any Series or to make any
other change, PROVIDED no such action
102
-95-
shall adversely affect the rights of any
Securityholder; or
(2) to comply with Article 5; or
(3) to secure the Securities pursuant to Section 4.03; or
(4) to provide for uncertificated Securities in addition
to or in place of certificated Securities; or
(5) to provide for the issuance of and establish the form
and terms and conditions of Securities of any Series
as provided in Section 2.02, to establish the form of
any certifications required to be furnished pursuant
to the terms of this Indenture or any Series of
Securities, or to add to the rights of the Holders of
any Series of Securities, or to surrender any right
or power conferred on the Company.
SECTION 9.02. WITH CONSENT OF HOLDERS.
(a) With the written consent of the Holders of a majority in
principal amount of the outstanding Securities of each Series affected by such
supplemental indenture (with each Series voting as a class), the Company and the
Trustee may enter into a supplemental indenture to add any provisions to or to
change or eliminate any provisions of this Indenture or of any supplemental
103
-96-
indenture or to modify, in each case in any manner not covered by Section 9.01,
the rights of the Securityholders of each such Series. The Holders of a majority
in principal amount of the outstanding Securities of each Series affected by
such waiver (with each Series voting as a class), by notice to the Trustee, may
waive compliance by the Company with any provision of this Indenture, any
supplemental indenture or the Securities of any such Series, provided, however,
without the consent of each Securityholder affected, an amendment or waiver may
not:
(1) reduce the amount of Securities whose
Holders must consent to an amendment or
waiver;
(2) change the rate of or change the time for
payment of interest on any Security;
(3) change the principal of or change the fixed
maturity of any Security;
(4) waive a Default in the payment of the
principal of or interest on any Security;
(5) make any Security payable in money other
than that stated in the Security; or
(6) make any change in Sections 6.06 (third
sentence), 6.04 (last paragraph), or the
proviso in the last sentence of Section
9.02(a).
104
-97-
(b) It is not necessary under this Section 9.02 for the
Securityholders to consent to the particular form of any proposed supplemental
indenture, but it is sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
9.02, the Company shall transmit by mail a notice, setting forth in general
terms the substance of such supplemental indenture, to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities
that are entitled to receive reports pursuant to Section 4.02(c). Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Securities of one or
more Series shall be set forth in a supplemental indenture that complies with
the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, direction or waiver becomes effective, a
consent to it by a Holder of a Security is a continuing consent by the Holder
and every subsequent Holder of a
105
-98-
Security or portion of a Security that evidences the same debt as the consenting
▇▇▇▇▇▇'s Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security if the Trustee receives the notice of
revocation before the date the amendment, direction or waiver becomes effective.
After an amendment or waiver becomes effective, it shall bind every
Securityholder of each Series affected by such amendment or waiver.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may, at the direction of the Company, place an
appropriate notation about an amendment or waiver on any Security of any Series
thereafter authenticated. The Company in exchange for Securities of that Series
may issue and the Trustee shall authenticate new Securities of that Series that
reflect the amendment or waiver.
SECTION 9.06. TRUSTEE PROTECTED.
The Trustee may require an Officer's Certificate and an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
complies with the applicable provisions of the Indenture. The Trustee need not
sign any supplemental indenture that adversely affects its rights, duties,
obligations and standard of care hereunder.
106
-99-
ARTICLE 10.
MISCELLANEOUS.
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or
conflicts with a provision which is required to be included in this Indenture by
the TIA, the required provision shall control.
SECTION 10.02. NOTICES.
(a) Unless otherwise herein provided, any notice or
communication by the Company or the Trustee to the other is duly given if in
writing and delivered in person, mailed by first-class mail, or sent by
facsimile transmission (confirmed by hard copy):
if to the Company to:
Lucent Technologies Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Treasury Manager
Facsimile Number: [(___) ___-____]
if to the Trustee to:
[_______________________]
_______________________
_______________________
Attention:_______________________
_______________________
Facsimile Number: (___) ___-____]
107
-100-
(b) The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Holders of Securities
entitled to receive reports pursuant to Section 4.02(c) shall be mailed by
first-class mail, postage prepaid, to the addresses for Holders of Registered
Securities shown on the register kept by the Registrar and to addresses filed
with the Trustee for other Holders. Failure to so mail a notice or communication
or any defect in such notice or communication shall not affect its sufficiency
with respect to other Holders of Securities of that or any other series entitled
to receive notice.
(d) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is conclusively presumed to have
been duly given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and to each Agent at the
same time.
(f) If it shall be impractical in the opinion of the Trustee
or the Company to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
108
-101-
(g) In case, by reason of the suspension of regular mail
service, or by reason of any other cause, it shall be impossible to mail any
notice as required by this Indenture, then such method of notification as shall
be made with the approval of the Trustee shall constitute a sufficient mailing
of such notice.
SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders of any Series may communicate pursuant to TIA
Section 312(b) with other Securityholders of that Series or of all Series with
respect to their rights under this Indenture or under the Securities of that
Series or of all Series. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 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, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
109
-102-
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(3) a statement that, in the opinion of such person, he
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 persons such condition or covenant has been
complied with.
110
-103-
SECTION 10.06. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday, or a day on which
banking institutions are not required to be open. If a payment date is a Legal
Holiday at a place of payment, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 10.07. GOVERNING LAW.
This Indenture, each Security and any coupons shall be deemed
to be a contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State without
giving effect to the principles of conflict of laws thereof.
SECTION 10.08. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or an Affiliate. No such indenture, loan
or debt agreement may be used to interpret this Indenture.
SECTION 10.09. NO RECOURSE AGAINST OTHERS.
No director, officer, employee or stockholder, as such, of the
Company shall have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim
111
-104-
based on, in respect of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issue of the
Securities.
SECTION 10.10. WHEN TREASURY SECURITIES DISREGARDED.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or any Affiliate of the Company shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to the Securities and that the pledgee is
not the Company or an Affiliate of the Company.
SECTION 10.11. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or a
meeting of Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
112
-105-
SECTION 10.12. EXECUTION IN COUNTERPARTS.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one instrument.
SECTION 10.13. SECURITIES IN A FOREIGN CURRENCY.
Unless otherwise specified in a Company Order delivered
pursuant to Section 2.03(d) of this Indenture with respect to a Series of
Securities, whenever for purposes of this Indenture any action may be taken by
the holders of a specified percentage in aggregate principal amount of
Securities of all Series or all Series affected at the time outstanding and, at
such time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than United States dollars, then the principal
amount of Securities of such Series which shall be deemed to be outstanding for
the purpose of taking such action shall be that amount of United States dollars
that could be obtained for such amount at the Market Exchange Rate, as such rate
shall be certified to the Trustee by an Officers' Certificate. For purposes of
this Section 10.13, Market Exchange Rate shall mean the noon United States
dollar buying rate for that currency for cable transfers quoted in New York City
as certified for customs purposes by the Federal Reserve Bank of New York;
provided, however, in the case of European Currency Units ("ECUs") Market
Exchange Rate shall mean the rate of exchange
113
-106-
determined by the Commission of the European Communities (or any successor
thereto) as published in the Official Journal of the European Communities (such
publication or any successor publication, the "Journal"). If such Market
Exchange Rate is not available for any reason with respect to such currency, the
Company shall use, in its sole discretion and without liability on its part,
such quotation of the Federal Reserve Bank of New York or, in the case of ECUs,
the rate of exchange as published in the Journal, as of the most recent
available date or quotations or, in the case of ECUs, rates of exchange from one
or more major banks in New York City or in the country of issue of the currency
in question, which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECUs, rates of exchange as the Company shall
deem appropriate. The provisions of this paragraph shall apply in determining
the equivalent number of votes which each Holder or proxy shall be entitled to
in respect of Securities of a Series denominated in a currency other than United
States dollars.
All decisions and determinations of the Company regarding the
Market Exchange Rate shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive for all purposes and irrevocably binding upon
the Company, the Trustee and all Holders.
114
-107-
SECTION 10.14. JUDGMENT CURRENCY.
The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert any sum due in respect of the
principal of, premium, if any, or interest in the Securities of any Series (the
"Required Currency") into a currency in which such judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final judgment is entered, unless such day is not a New York Banking Day
then, to the extent permitted by applicable law, the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding the day on which final judgment
is entered and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be
115
-108-
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due not previously tendered or recovered under this
Indenture. For purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in The City of New York or a day on
which banking institutions in The City of New York are authorized by law or
required by executive order to close.
[ Trustee ] hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, LUCENT TECHNOLOGIES INC. has caused this
Indenture to be signed and acknowledged by its Chairman of the Board, any Vice
Chairman,its Chief Executive Officer, its President, its Chief Financial
Officer, or its Vice President and Treasurer, and its corporate seal to be
affixed hereunto and the same to be attested by its Secretary or by one of its
Assistant Secretaries; and [ Trustee ] has caused this Indenture to be signed
and acknowledged by one of its Vice Presidents, and its corporate seal to be
affixed hereunto and the same to be attested by its Secretary or
116
-109-
one of its Assistant Secretaries. Executed and delivered in The City of New
York, State of New York, as of the day and year first written above.
LUCENT TECHNOLOGIES INC.
By_________________________
Vice President and
Treasurer
(SEAL)
Attest
_____________________________
Assistant Secretary
[ Trustee ]
By_________________________
Assistant Vice President
(SEAL)
Attest:
_____________________________
Assistant Vice President
117
-110-
STATE OF [_____________])
) SS.:
COUNTY OF [_____________])
On the________day of___________, 19___, before me personally
came_________________, to me known, who, being by me duly sworn, did depose and
say the he resides at_______________, that he is the Vice President and
Treasurer of [▇▇▇▇▇▇ Technologies Inc.], one of the corporations described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
STATE OF [_____________])
) SS.:
COUNTY OF [_____________])
On the______ day of___________ , 19___ , before me personally
came___________, to me known, who, being by me duly sworn, did depose and say
the he resides at______________, that he is a ___________________ of
__________________, one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.