Attached files
file | filename |
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EX-5.2 - EX-5.2 - HeartWare International, Inc. | b83760exv5w2.htm |
EX-5.1 - EX-5.1 - HeartWare International, Inc. | b83760exv5w1.htm |
EX-4.2 - EX-4.2 - HeartWare International, Inc. | b83760exv4w2.htm |
EX-1.1 - EX-1.1 - HeartWare International, Inc. | b83760exv1w1.htm |
EX-1.2 - EX-1.2 - HeartWare International, Inc. | b83760exv1w2.htm |
EX-99.3 - EX-99.3 - HeartWare International, Inc. | b83760exv99w3.htm |
EX-99.1 - EX-99.1 - HeartWare International, Inc. | b83760exv99w1.htm |
EX-99.2 - EX-99.2 - HeartWare International, Inc. | b83760exv99w2.htm |
8-K - HEARTWARE INTERNATIONAL, INC. - HeartWare International, Inc. | b83760e8vk.htm |
Exhibit 4.1
INDENTURE
between
HEARTWARE INTERNATIONAL, INC.,
as Issuer
as Issuer
and
WILMINGTON TRUST FSB,
as Trustee
as Trustee
Dated
as of December 15, 2010
Providing for the Issuance of Debt Securities in Series
HEARTWARE INTERNATIONAL, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of December 15, 2010
of 1939 and Indenture, dated as of December 15, 2010
Trust Indenture | ||||||
Act Section | Indenture Section | |||||
Sec. |
310(a)(1) | 607 | ||||
(a)(2) | 607 | |||||
(b) | 608 | |||||
Sec. |
312(c) | 701 | ||||
Sec. |
314(a) | 703 | ||||
(a)(4) | 1004 | |||||
(c)(1) | 102 | |||||
(c)(2) | 102 | |||||
(e) | 102 | |||||
Sec. |
315(b) | 601 | ||||
Sec. |
316(a)(last sentence) | 101 (Outstanding) | ||||
(a)(1)(A) | 502, 512 | |||||
(a)(1)(B) | 513 | |||||
(b) | 508 | |||||
(c) | 104(c) | |||||
Sec. |
317(a)(1) | 503 | ||||
(a)(2) | 504 | |||||
(b) | 1003 | |||||
Sec. |
318(a) | 111 |
Note: | This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. |
TABLE OF CONTENTS
Page | ||||
PARTIES |
1 | |||
RECITALS OF THE COMPANY |
1 |
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions |
1 | |||
Section 102. Compliance Certificates and Opinions |
11 | |||
Section 103. Form of Documents Delivered to Trustee |
11 | |||
Section 104. Acts of Holders |
12 | |||
Section 105. Notices, etc. to Trustee or the Company |
14 | |||
Section 106. Notice to Holders; Waiver |
14 | |||
Section 107. Effect of Headings and Table of Contents |
15 | |||
Section 108. Successors and Assigns |
15 | |||
Section 109. Separability Clause |
15 | |||
Section 110. Benefits of Indenture |
15 | |||
Section 111. Governing Law |
15 | |||
Section 112. Legal Holidays |
15 | |||
Section 113. No Recourse |
16 | |||
Section 114. Incorporation by Reference of Trust Indenture Act |
16 | |||
Section 115. Rules of Construction |
16 | |||
Section 116. U.S.A. Patriot Act |
17 |
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally |
17 | |||
Section 202. Form of Trustees Certificate of Authentication |
18 | |||
Section 203. Securities Issuable in Global Form |
18 |
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series |
19 | |||
Section 302. Denominations |
23 | |||
Section 303. Execution, Authentication, Delivery and Dating |
23 | |||
Section 304. Temporary Securities |
25 |
Note: | This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. |
i
Page | ||||
Section 305. Registration, Registration of Transfer and Exchange |
27 | |||
Section 306. Mutilated, Destroyed, Lost and Stolen Securities |
31 | |||
Section 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset |
32 | |||
Section 308. [Reserved] |
35 | |||
Section 309. Persons Deemed Owners |
35 | |||
Section 310. Cancellation |
36 | |||
Section 311. Computation of Interest |
36 | |||
Section 312. Currency and Manner of Payments in Respect of Securities |
36 | |||
Section 313. Appointment and Resignation of Successor Exchange Rate Agent |
39 |
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture |
40 | |||
Section 402. Application of Trust Money |
41 |
ARTICLE FIVE
REMEDIES
Section 501. Events of Default |
42 | |||
Section 502. Acceleration of Maturity; Rescission and Annulment |
43 | |||
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee |
45 | |||
Section 504. Trustee May File Proofs of Claim |
45 | |||
Section 505. Trustee May Enforce Claims Without Possession of Securities |
46 | |||
Section 506. Application of Money Collected |
46 | |||
Section 507. Limitation on Suits |
47 | |||
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest |
47 | |||
Section 509. Restoration of Rights and Remedies |
47 | |||
Section 510. Rights and Remedies Cumulative |
48 | |||
Section 511. Delay or Omission Not Waiver |
48 | |||
Section 512. Control by Holders |
48 | |||
Section 513. Waiver of Past Defaults |
48 | |||
Section 514. Undertaking for Costs |
49 | |||
Section 515. Waiver of Stay or Extension Laws |
49 |
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults |
49 | |||
Section 602. Certain Duties, Responsibilities and Rights of Trustee |
50 | |||
Section 603. Trustee Not Responsible for Recitals or Issuance of Securities |
52 | |||
Section 604. May Hold Securities |
52 | |||
Section 605. Money Held in Trust |
53 | |||
Section 606. Compensation and Reimbursement |
53 |
ii
Page | ||||
Section 607. Corporate Trustee Required; Eligibility; Conflicting Interests; Disqualification |
54 | |||
Section 608. Resignation and Removal; Appointment of Successor |
54 | |||
Section 609. Acceptance of Appointment by Successor |
56 | |||
Section 610. Merger, Conversion, Consolidation or Succession to Business |
57 | |||
Section 611. Appointment of Authenticating Agent |
57 |
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders |
59 | |||
Section 702. Reports by Trustee |
59 | |||
Section 703. Reports by Company |
59 |
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain Terms |
60 | |||
Section 802. Successor Person Substituted |
61 |
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders |
61 | |||
Section 902. Supplemental Indentures with Consent of Holders |
62 | |||
Section 903. Execution of Supplemental Indentures |
63 | |||
Section 904. Effect of Supplemental Indentures |
64 | |||
Section 905. Conformity with Trust Indenture Act |
64 | |||
Section 906. Reference in Securities to Supplemental Indentures |
64 | |||
Section 907. Notice of Supplemental Indentures |
64 |
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, if Any, and Interest |
64 | |||
Section 1002. Maintenance of Office or Agency |
64 | |||
Section 1003. Money for Securities Payments to Be Held in Trust |
66 | |||
Section 1004. Statement by Officers as to Default |
67 | |||
Section 1005. Existence |
68 | |||
Section 1006. Further Instruments and Acts |
68 | |||
Section 1007. Calculation of Original Issue Discount |
68 | |||
Section 1008. Additional Amounts |
68 | |||
Section 1009. Waiver of Certain Covenants |
68 |
iii
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Page | ||||
Section 1101. Applicability of Article |
69 | |||
Section 1102. Election to Redeem; Notice to Trustee |
69 | |||
Section 1103. Selection by Trustee of Securities to Be Redeemed |
69 | |||
Section 1104. Notice of Redemption |
69 | |||
Section 1105. Deposit of Redemption Price |
71 | |||
Section 1106. Securities Payable on Redemption Date |
71 | |||
Section 1107. Securities Redeemed in Part |
72 | |||
Section 1108. Optional Redemption Due to Changes in Tax Treatment |
72 |
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article |
73 | |||
Section 1202. Satisfaction of Sinking Fund Payments with Securities |
73 | |||
Section 1203. Redemption of Securities for Sinking Fund |
73 |
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
Section 1301. Applicability of Article |
74 | |||
Section 1302. Repayment of Securities |
75 | |||
Section 1303. Exercise of Option |
75 | |||
Section 1304. When Securities Presented for Repayment Become Due and Payable |
75 | |||
Section 1305. Securities Repaid in Part |
76 |
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Companys Option to Effect Defeasance or Covenant Defeasance |
76 | |||
Section 1402. Defeasance and Discharge |
77 | |||
Section 1403. Covenant Defeasance |
77 | |||
Section 1404. Conditions to Defeasance or Covenant Defeasance |
78 | |||
Section 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions |
79 | |||
Section 1406. Reinstatement |
80 |
iv
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Page | ||||
Section 1501. Purposes for Which Meetings May Be Called |
80 | |||
Section 1502. Call, Notice and Place of Meetings |
81 | |||
Section 1503. Persons Entitled to Vote at Meetings |
81 | |||
Section 1504. Quorum; Action |
81 | |||
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings |
82 | |||
Section 1506. Counting Votes and Recording Action of Meetings |
83 | |||
EXHIBIT A |
A-1 |
v
INDENTURE,
dated as of December 15, 2010, between HEARTWARE INTERNATIONAL, INC., a Delaware
corporation, as Issuer (the Company), having its principal office at 205 Newbury Street,
Framingham, Massachusetts, USA 01701, and WILMINGTON TRUST FSB, a federal savings bank, as Trustee
(the Trustee).
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured senior or subordinated debentures,
notes or other evidences of indebtedness (the Securities), which may be convertible into or
exchangeable for any securities of any person (including the Company), to be issued in one or more
series as in this Indenture provided; and
WHEREAS, this Indenture is subject to the provisions of the Trust Indenture Act of 1939, as
amended, that are required to be part of this Indenture, and shall be governed by such provisions;
provided that if any provision of this Indenture modifies any TIA (as defined herein)
provision that may be so modified, such TIA provision shall be deemed to apply to this Indenture as
so modified; provided further that if any provision of this Indenture excludes any
TIA provision that may be so excluded, such TIA provision shall be excluded from this Indenture;
and
WHEREAS, all things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders (as
defined herein) thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof and any coupons (as defined herein),
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. Act, when used with respect to any Holder, has the
meaning specified in Section 104.
Additional Amounts has the meaning specified in Section 1008.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, control, as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise. For purposes of this definition, the terms controlling, controlled
by and under common control with shall have correlative meanings.
Authenticating Agent means any Person appointed by the Trustee to act on behalf of the
Trustee pursuant to Section 611 to authenticate Securities.
Authorized Newspaper means a newspaper, in the English language or in an official language
of the country of publication, customarily published on each Business Day, whether or not published
on Saturdays, Sundays or holidays, and of general circulation in each place in connection with
which the term is used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
Bankruptcy Law means Title 11, U.S. Code or any similar U.S. federal or state law for the
relief of debtors.
Bearer Security means any Security except a Registered Security.
Board of Directors means (i) with respect to a corporation, the board of directors of the
corporation; (ii) with respect to a partnership, the board of directors of a corporate general
partner of the partnership; (iii) with respect to a limited liability company, the managing members
thereof; and (iv) with respect to any other Person, the board of directors or committee of such
Person serving a similar function.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company as the case may be, to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, and delivered to the Trustee.
Business Day means, when used with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, unless otherwise specified with
respect to any Securities pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and
Friday which (i) is not a day on which banking institutions in that Place of Payment or other
location are authorized or obligated by law or executive order to close and (ii) if a payment is to
be made in (or a rate is to be ascertained for) Euros, is also a day in which TARGET is open for
settlement of payments in Euros.
Clearstream means Clearstream Banking, société anonyme, or its successor.
Code means the United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder.
Commission or SEC means the U.S. Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.
2
Commodity Agreement means any forward contract, commodity swap, commodity option or other
financial agreement or arrangement relating to, or the value of which is dependent upon,
fluctuations in commodity prices.
Common Depositary has the meaning specified in Section 304.
Company means the Person named as the Company in the first paragraph of this Indenture
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of
the Company by an Officer of the Company and delivered to the Trustee.
Conversion Date has the meaning specified in Section 312(d).
Conversion Event means the cessation of use of a Foreign Currency both by the government of
one or more countries or by any recognized union, association or confederation of governments that
issued such Foreign Currency and by a central bank or other public institution of or within the
international banking community for the settlement of transactions in such Foreign Currency.
Corporate Trust Office of the Trustee means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be administered, which
office on the date of execution of this Indenture is located at Wilmington Trust FSB, Corporate
Capital Markets, 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402-1544, Attention:
HeartWare Administrator, except that with respect to presentation of Securities for payment or for
registration of transfer or exchange, such term shall mean the office or agency of the Trustee at
which, at any particular time, its corporate agency business shall be conducted.
corporation includes corporations, associations, companies and business or statutory trusts.
coupon means any interest coupon appertaining to a Bearer Security.
Currency means any currency, composite currency or currency unit and Foreign Currency issued
by the government of one or more countries or by any recognized union, confederation or association
of such governments.
Currency Agreement means any foreign exchange contract, currency swap agreement or other
similar agreement with respect to currency values.
Default means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
Defaulted Interest has the meaning specified in Section 307.
3
Depositary means, with respect to Registered Securities of any series for which the Company
shall determine that such Registered Securities will be issued in permanent global form, The
Depository Trust Company, New York, New York, another clearing agency, or any successor registered
as a clearing agency under the Exchange Act, or other applicable statute or regulations, which in
each case, shall be designated by the Company pursuant to Section 301.
Dollar or $ means a dollar or other equivalent unit in such coin or currency of the United
States of America as at the time shall be legal tender for the payment of public and private debts
therein.
Dollar Equivalent of the Currency Unit has the meaning specified in Section 312(g).
Dollar Equivalent of the Foreign Currency has the meaning specified in Section 312(f).
EDGAR means the SECs Electronic Data Gathering and Retrieval System.
Election Date has the meaning specified in Section 312(h).
Euroclear means Euroclear Bank S.A./N.V. as operator of Euroclear System, and any successor
thereto.
Event of Default has the meaning specified in Section 501.
Exchange Act means the U.S. Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
Exchange Date has the meaning specified in Section 304.
Exchange Rate Agent means, with respect to Securities of or within any series, unless
otherwise specified with respect to any Securities pursuant to Section 301, a New York Clearing
House bank, designated pursuant to Section 301 or Section 313.
Exchange Rate Officers Certificate means a certificate setting forth (i) the applicable
Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section 302 in the relevant Currency),
payable with respect to a Security of any series on the basis of such Market Exchange Rate, signed
by any Officer of the Company.
Federal Bankruptcy Code means the U.S. Bankruptcy Act of Title 11 of the United States Code,
as amended from time to time.
Foreign Currency means any Currency other than Currency of the United States.
4
GAAP means U.S. generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other successor entities as have been sanctioned and approved by the
Securities and Exchange Commission, approved by a significant segment of the accounting profession,
that are applicable at the date of any relevant calculation or determination.
Government Obligations means, unless otherwise specified with respect to any series of
Securities pursuant to Section 301, securities which are (i) direct obligations of the government
which issued the Currency in which the Securities of a particular series are payable or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the government which issued the Currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed by such government, which, in either case, are full
faith and credit obligations of such government payable in such Currency and are not callable or
redeemable at the option of the issuer thereof and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
guarantee means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including,
without limitation, letters of credit and reimbursement agreements in respect thereof), of all or
any part of any Indebtedness or other obligations.
Holder means, in the case of a Registered Security, the Person in whose name a Security is
registered in the Security Register and, in the case of a Bearer Security, the bearer thereof and,
when used with respect to any coupon, shall mean the bearer thereof.
Indebtedness means any and all obligations of a Person for money borrowed which, in
accordance with GAAP, would be reflected on the balance sheet of such Person as a liability on the
date as of which Indebtedness is to be determined.
Indenture means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 301; provided, however, that, if at any time
more than one Person is acting as Trustee under this instrument, Indenture shall mean, with
respect to any one or more series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities for which such Person is Trustee established
as contemplated by Section 301, exclusive, however, of any provisions or terms
5
which relate solely to other series of Securities for which such Person is not Trustee,
regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and delivered after such
Person had become such Trustee but to which such Person, as such Trustee, was not a party.
Indexed Security means a Security the terms of which provide that the principal amount
thereof payable at the Stated Maturity may be more or less than the principal amount thereof at
original issuance.
interest means, when used with respect to an Original Issue Discount Security the rate
prescribed in such Original Issue Discount Security.
Interest Payment Date means, when used with respect to any Security, the Maturity of an
installment of interest on such Security.
Interest Rate Agreement means any interest rate swap agreement, interest rate cap agreement
or other financial agreement or arrangement with respect to exposure to interest rates.
Lien or lien means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other agreement to sell or give
a security interest in and any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
Market Exchange Rate means, unless otherwise specified with respect to any Securities
pursuant to Section 301, (i) for any conversion involving a currency unit on the one hand and
Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit
and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 301 for
the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign
Currency, the noon (New York City time) buying rate for such Foreign Currency for cable transfers
quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York
and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased
with the Foreign Currency from which conversion is being made from major banks located in either
New York City, London or any other principal market for Dollars or such purchased Foreign Currency,
in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in
its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank
of New York as of the most recent available date, or quotations from one or more major banks in New
York City, London or another principal market for the Currency in question, or such other
quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if there is more than one market for dealing in any Currency by reason of
foreign
6
exchange regulations or otherwise, the market to be used in respect of such Currency shall be
that upon which a non-resident issuer of securities designated in such Currency would purchase such
Currency in order to make payments in respect of such securities.
Maturity means, when used with respect to any Security, the date on which the principal of
such Security or any installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by acceleration, notice of redemption, notice of option
to elect repayment, notice of exchange or conversion, or otherwise.
Officer means the President, any Vice President, the Chief Financial Officer, the Treasurer
or the Secretary.
Officers Certificate means a certificate signed on behalf of the Company by one Officer of
the Company who must be the President, the Chief Financial Officer the Treasurer, or a Vice President of the Company, that
meets the requirements of Section 102.
Opinion of Counsel means a written opinion of counsel, who may be counsel for the Company,
including an employee of the Company, and who shall be acceptable to the Trustee.
Original Issue Discount Security means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon an acceleration of the Maturity thereof
pursuant to Section 502.
Outstanding means, when used with respect to Securities, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption or repayment at
the option of the Holder money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities and any coupons appertaining thereto; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and 1403, with respect
to which the Company has effected defeasance and/or covenant defeasance as provided in
Article Fourteen;
(iv) Securities which have been paid pursuant to Section 306 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the Company; and
7
(v) Securities that have been converted or exchanged for other securities pursuant to
Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the
principal amount of an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the amount of principal thereof that would be (or shall have been determined to be) due
and payable, at the time of such determination, upon an acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated in a Foreign
Currency that may be counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date
such Security is originally issued by the Company as set forth in an Exchange Rate Officers
Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above) of such Security, (iii) the principal amount of any
Indexed Security that may be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the principal amount of such Indexed Security
at original issuance, unless otherwise provided with respect to such Security pursuant to Section
301, and (iv) Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected in making such
determination or calculation or in conclusively relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which a Responsible Officer of the Trustee actually knows to
be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgees right so to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or such other obligor.
Paying Agent means any Person (including the Company acting as Paying Agent) authorized by
the Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on
behalf of the Company.
Person means any individual, corporation, partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Place of Payment means, when used with respect to the Securities of or within any series,
the place or places (which, in the case of Bearer Securities, shall be outside the United States)
where the principal of (and premium, if any) and interest, if any, on such Securities are payable
as specified as contemplated by Sections 301 and 1002.
Redemption Date, when used with respect to any Security to be redeemed, in whole or in part,
means the date fixed for such redemption pursuant to this Indenture.
8
Redemption Price means, when used with respect to any Security to be redeemed, the price at
which it is to be redeemed pursuant to this Indenture.
Registered Security means any Security registered in the Security Register.
Regular Record Date for the interest payable on any Interest Payment Date on the Registered
Securities of or within any series means the date specified for that purpose as contemplated by
Section 301.
Repayment Date means, when used with respect to any Security to be repaid at the option of
the Holder, the date fixed for such repayment pursuant to this Indenture.
Repayment Price means, when used with respect to any Security to be repaid at the option of
the Holder, the price at which it is to be repaid pursuant to this Indenture.
Responsible Officer means, when used with respect to the Trustee, any officer of the Trustee
within the Corporate Trust Office of the Trustee (or any successor group of the Trustee) who has
direct responsibility for administration of this Indenture and, for purposes of Section 601 (or
subparagraph (3)(b) of the first paragraph of Section 602 to the extent such expanded definition is
used), also includes any other officer to whom such matter is referred because of such officers
knowledge of and familiarity with the particular subject.
Security or Securities has the meaning stated in the first recital of this Indenture and
more particularly means any Security or Securities authenticated and delivered under this
Indenture; provided, however, that if at any time there is more than one Person
acting as Trustee under this Indenture, Securities with respect to the Indenture as to which such
Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this Indenture, exclusive,
however, of Securities of any series as to which such Person is not Trustee.
Security Register and Security Registrar have the respective meanings specified in Section
305.
Significant Subsidiary of any Person means any significant subsidiary of such Person
within the meaning of Article 1, Rule 1-02 of Regulation S-X promulgated under the Securities Act
of 1933, as amended.
Special Record Date for the payment of any Defaulted Interest on the Registered Securities
of or within any series means a date fixed by the Trustee pursuant to Section 307.
Stated Maturity, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security or a coupon representing
such installment of interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
Subsidiary means (1) any corporation of which at least a majority of the outstanding stock
having by the terms thereof ordinary voting power for the election of directors
9
of such corporation (irrespective of whether or not at the time stock of any other class or
classes of such corporation shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned by the Company or one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries, and (2) any other Person in
which the Company or one or more other Subsidiaries, directly or indirectly, at the date of
determination, (x) own at least a majority of the outstanding ownership interests or (y) have the
power to elect or direct the election of, or to appoint or approve the appointment of, at least the
majority of the directors, trustees or managing members of, or other persons holding similar
positions with, such Person.
TARGET means the Trans-European Automated Real-Time Gross Settlement Express Transfer
System.
Trade Payables means accounts payable or any other Indebtedness or monetary obligations to
trade creditors created or assumed in the ordinary course of business in connection with the
obtaining of materials or services.
Trust Indenture Act or TIA means the U.S. Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was executed, except as provided in Section 905.
Trustee means the Person named as the Trustee in the first paragraph of this Indenture
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder; provided, however, that if at any time there is more than one such
Person, Trustee as used with respect to the Securities of any series shall mean only the Trustee
with respect to Securities of that series.
United States means, unless otherwise specified with respect to any Securities pursuant to
Section 301, the United States of America (including the states and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
United States person means, unless otherwise specified with respect to any Securities
pursuant to Section 301, an individual who is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the laws of the United
States, an estate the income of which is subject to United States federal income taxation
regardless of its source or any trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United States persons have
the authority to control all substantial decisions of the trust.
Valuation Date has the meaning specified in Section 312(c).
Vice President, when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
vice president.
Yield to Maturity means the yield to maturity, computed at the time of issuance of a
Security (or, if applicable, at the most recent redetermination of interest on such Security)
10
and as set forth in such Security in accordance with generally accepted United States bond
yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any application or request
by the Company to the Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant or condition compliance with which
constitutes a condition precedent) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a covenant or condition provided
for in this Indenture (other than pursuant to Section 1004) shall include:
(1) a statement that each individual signing such certificate or opinion has read
such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such covenant
or condition has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where several
matters are required to be certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any Officers Certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by an Officer of the Company
stating that the information with respect to such factual matters is in the possession of the
Company unless such Officer or counsel knows, or in the exercise of reasonable care should
11
know, that the certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders
of the Outstanding Securities of all series or one or more series, as the case may be, may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company or to all of them. Such instrument or
instruments and any such record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the Act of the Holders signing such instrument or instruments or so
voting at any such meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture (subject to section 315 of the TIA) and conclusive in favor of the Trustee, the
Company and any agent of the Trustee or the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in the manner provided
in Section 1506.
Without limiting the generality of this Section 104, unless otherwise provided in or pursuant
to this Indenture, a Holder, including a Depositary that is a Holder of a global Security
(including through its nominee), may make, give or take, by a proxy or proxies, duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture or Securities to be made, given or taken by the Holders,
and a Depositary that is a Holder of a global Security may provide its proxy or proxies to the
beneficial owners of interests in such global Security through such Depositarys standing
instructions and customary practices.
(a) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual capacity, such certificate
or affidavit shall also constitute sufficient proof of authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other reasonable manner that the Trustee deems sufficient.
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(b) The principal amount and serial numbers of Registered Securities held by any Person, and
the date of holding the same, shall be proved by the Security Register.
(c) The principal amount and serial numbers of Bearer Securities held by any Person, and the
date of holding the same, may be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company, wherever situated, if such certificate shall be deemed by
the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities,
if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may also be proved in any other reasonable manner
that the Trustee deems sufficient.
(d) If the Company shall solicit from the Holders of Registered Securities any request,
demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its
option, in or pursuant to a Board Resolution, fix in advance a record date for the determination
of Holders entitled to give such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven months after the
record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of
the Holder of any Security shall bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent, the Company in reliance thereon, whether or
not notation of such Act is made upon such Security.
13
SECTION 105. Notices, etc. to Trustee or the Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or
permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing (including telecopy to (612)
217-5651) to or with the Trustee at its Corporate Trust Office, Attention: HeartWare
Administrator, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid or by overnight delivery service, to the Company addressed to
it at the address of the Companys principal office specified in the first paragraph of
this Indenture, to the attention of its General Counsel, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. Except as otherwise expressly provided
herein or otherwise specified with respect to any series of Securities pursuant to Section 301,
where this Indenture provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided. Any notice mailed to a Holder in the manner herein prescribed shall
be conclusively deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
In case, by reason of the suspension of or irregularities in regular mail service or by reason
of any other cause, it shall be impractical to mail notice of any event to Holders of Registered
Securities when such notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving written notice as shall be satisfactory to the Trustee shall be deemed to
be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with respect to any
series of Securities pursuant to Section 301, where this Indenture provides for notice to Holders
of Bearer Securities of any event, such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York and in such other city
or cities as may be specified in respect of such Securities on a Business Day at least twice, the
first such publication to be not earlier than the earliest date, and not later than the latest
date, prescribed for the giving of such notice. Any such notice shall be deemed to have been given
on the date of such publication or, if published more than once, on the date of the first such
publication.
14
If by reason of the suspension of publication of any Authorized Newspaper or Authorized
Newspapers or by reason of any other cause, it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall constitute sufficient written
notice to such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of Registered Securities given as provided
herein.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted
under this Indenture shall be in the English language, except that any published notice may be in
an official language of the country of publication.
Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in this Indenture or in any
Security or any coupon shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or in the Securities
or coupons, express or implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their successors hereunder and
the Holders of Securities or coupons, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 111. Governing Law. THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THIS INDENTURE IS
SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT THAT ARE REQUIRED TO BE PART OF THIS INDENTURE
AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
SECTION 112. Legal Holidays. Unless otherwise specified in or pursuant to this
Indenture or any Securities, in any case where any Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date or Stated Maturity or Maturity of any Security shall not
be a Business Day at any Place of Payment, then payment of principal (or premium, if any)
15
or interest, if any, need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force and effect as if
made on such Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity, as the case may be, provided that no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be, to such
next succeeding Business Day.
SECTION 113. No Recourse. No recourse for the payment of the principal of or
premium, if any, or interest on any Security or any coupons appertaining thereto, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental indenture, or in any
Security or any coupons appertaining thereto, or because of the creation of any indebtedness
represented thereby, shall be had against any director, officer, employee, or stockholder as such,
past, present or future, of the Company or any of its Affiliates or any successor Person of the
Company, either directly or through the Company or any of its Affiliates or any successor Person of
the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of the Securities.
SECTION 114. Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made
a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
(i) | indenture securities means the Securities; | ||
(ii) | indenture security Holder means a Holder of a Security; | ||
(iii) | indenture to be qualified means this Indenture; | ||
(iv) | indenture trustee or institutional trustee means the Trustee; and | ||
(v) | obligor on the Securities means the Company and any successor obligor upon the 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 the TIA have the meanings so assigned to them.
SECTION 115. Rules of Construction. Unless the context otherwise requires:
(i) | a term has the meaning assigned to it; | ||
(ii) | an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; |
16
(iii) | or is not exclusive; | ||
(iv) | words in the singular include the plural, and in the plural include the singular; and | ||
(v) | provisions apply to successive events and transactions. |
SECTION 116. U.S.A. Patriot Act. The parties hereto acknowledge that in accordance
with Section 326 of the U.S.A. Patriot Act Wilmington Trust FSB, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, is required to obtain,
verify, and record information that identifies each person or legal entity that establishes a
relationship or opens an account. The parties to this Indenture agree that they will provide
Wilmington Trust FSB with such information as it may request in order for Wilmington Trust FSB to
satisfy the requirements of the U.S.A. Patriot Act.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. The Registered Securities, if any, of each series,
the Bearer Securities, if any, of each series and related coupons, the temporary global Securities
of each series, if any, and the permanent global Securities of each series, if any, shall be in
substantially the forms as shall be established by, or pursuant to a Board Resolution or, subject
to Section 303, set forth in, or determined in the manner provided in, an Officers Certificate
pursuant to a Board Resolution of the Company, or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange or as may, consistently herewith, be determined by the
officers of the Company executing such Securities or coupons as evidenced by their execution of
such Securities or coupons. If the forms of Securities or coupons of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or Assistant Secretary of the Company, and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities or coupons. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 301, Bearer Securities shall have
interest coupons attached.
The Trustees certificate of authentication on all Securities shall be in substantially the
form set forth in this Article.
The definitive Securities and coupons, if any, shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
17
by the officers of the Company executing such Securities or coupons, as evidenced by their
execution of such Securities or coupons.
SECTION 202. Form of Trustees Certificate of Authentication. Subject to Section
611, the Trustees certificate of authentication shall be in substantially the following form:
TRUSTEES CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Wilmington Trust FSB, as Trustee |
||||
By: | ||||
Authorized Signatory | ||||
SECTION 203. Securities Issuable in Global Form. If Securities of or within a
series are issuable in global form, as specified as contemplated by Section 301, then,
notwithstanding clause (8) of Section 301, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions
of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or Section 304 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in global form shall be
in writing but need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any Security represented by
a Security in global form if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Security in global form together with written instructions (which need
not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with regard to
the reduction in the principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
18
Notwithstanding any provisions of Section 307 to the contrary, unless otherwise specified as
contemplated by Section 301, payment of principal of (and premium, if any) and interest, if any, on
any Security in global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company or the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a permanent global
Security (i), in the case of a global Registered Security, the Holder thereof, or (ii) in the case
of a global Bearer Security, Euroclear or Clearstream.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate principal amount
of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in one or more
Board Resolutions of the Company or pursuant to authority granted by one or more Board Resolutions
of the Company and, subject to Section 303, set forth in, or determined in the manner provided in,
an Officers Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series, any or all of the following, as applicable (each of which
(except for the matters set forth in clauses (1), (2) and (17) below), if so provided, may be
determined from time to time by the Company with respect to unissued Securities of the series and
set forth in such Securities of the series when issued from time to time):
(1) title of the Securities of the series (which shall distinguish the Securities of
the series from all other series of Securities) and whether such Securities are senior or
subordinated;
(2) any limit upon the aggregate principal amount of the Securities of the series
that may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1305);
(3) the date or dates, or the method by which such date or dates will be determined
or extended, on which the principal of the Securities of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear interest, if
any, or the method by which such rate or rates shall be determined, the date or dates from
which any such interest shall accrue, or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest shall be payable, the right,
if any, of the Company to defer or extend an Interest Payment Date, and the
19
Regular Record Date, if any, for the interest payable on any Registered Security on
any Interest Payment Date, or the method by which such date or dates shall be determined,
and the basis upon which interest shall be calculated if other than on the basis of a
360-day year of twelve 30-day months;
(5) the place or places where the principal of (and premium, if any) and interest, if
any, on Securities of the series shall be payable (which in the case of Bearer Securities
shall be outside the United States), where any Registered Securities of the series may be
surrendered for registration of transfer, where Securities of the series may be
surrendered for exchange, where Securities of the series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable, and, if
different than the location specified in Section 105, the place or places where notices or
demands to or upon the Company in respect of the Securities of the series and this
Indenture may be served;
(6) the period or periods within which, the price or prices at which, the Currency in
which, and other terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if the Company is to have
that option;
(7) the obligation, if any, of the Company to redeem, repay or purchase Securities of
the series pursuant to any sinking fund or analogous provision or at the option of a
Holder thereof, and the period or periods within which or the date or dates on which, the
price or prices at which, the Currency in which, and other terms and conditions upon
which, Securities of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(8) if other than minimum denominations of $1,000 and integral multiples of $1,000
above such minimum denomination, the denomination or denominations in which any Registered
Securities of the series shall be issuable and, if other than denominations of $5,000, the
denomination or denominations in which any Bearer Securities of the series shall be
issuable;
(9) if other than the Trustee, the identity of each Security Registrar and/or Paying
Agent;
(10) if other than the principal amount thereof, the portion of the principal amount
of Securities of the series that shall be payable upon an acceleration of the Maturity
thereof pursuant to Section 502, upon redemption of the Securities of the series which are
redeemable before their Stated Maturity, upon surrender for repayment at the option of the
Holder, or which the Trustee shall be entitled to claim pursuant to Section 504 or the
method by which such portion shall be determined;
(11) if other than Dollar, the Currency or Currencies in which payment of the
principal of (or premium, if any) or interest, if any, on the Securities of the series
shall be made or in which the Securities of the series shall be denominated and the
particular
20
provisions applicable thereto in accordance with, in addition to or in lieu of any of
the provisions of Section 312;
(12) whether the amount of payments of principal of (or premium, if any) or interest,
if any, on the Securities of the series may be determined with reference to an index,
formula or other method (which index, formula or method may be based, without limitation,
on one or more Currencies, commodities, equity indices or other indices), and the manner
in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or interest, if any, on the
Securities of the series are to be payable, at the election of the Company or a Holder
thereof, in a Currency other than that in which such Securities are denominated or stated
to be payable, the period or periods within which (including the Election Date), and the
terms and conditions upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such Securities are
denominated or stated to be payable and the Currency in which such Securities are to be so
paid, in each case in accordance with, in addition to or in lieu of any of the provisions
of Section 312;
(14) the designation of the initial Exchange Rate Agent, if any, or any depositaries;
(15) if Sections 1402 and/or 1403 are not applicable to the Securities of the series
and any provisions in modification of, in addition to or in lieu of any of the provisions
of Article Fourteen that shall be applicable to the Securities of the series;
(16) provisions, if any, granting special rights to the Holders of Securities of the
series upon the occurrence of such events as may be specified;
(17) any deletions from, modifications of or additions to the Events of Default or
covenants of the Company or with respect to Securities of the series, whether or not such
Events of Default or covenants are consistent with the Events of Default or covenants set
forth herein;
(18) whether Securities of the series are to be issuable as Registered Securities,
Bearer Securities (with or without coupons) or both, any restrictions applicable to the
offer, sale or delivery of Bearer Securities, whether such Securities are to be issuable
initially in temporary global form, whether such Securities are to be issuable in
permanent global form with or without coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such interests for definitive
Securities of the series and of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than in the manner
provided in Section 305, whether Registered Securities of the series may be exchanged for
Bearer Securities of the series (if permitted by applicable laws and regulations), and
the circumstances under which and the place or places where any such exchanges may be made
and if Securities of the series are to be issuable in global form, the identity of any
Depositary therefor;
21
(19) the date as of which any Bearer Securities of the series and any temporary
global Security representing Outstanding Bearer Securities of the series shall be dated if
other than the date of original issuance of the first Security of the series to be issued;
(20) the Person to whom any interest on any Registered Security of the series shall
be payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest, the manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the extent to which, or
the manner in which, any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in Section 304; and the
extent to which, or the manner in which, any interest payable on a permanent global
Security on an Interest Payment Date will be paid if other than in the manner provided in
Section 307;
(21) if Securities of the series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such series) only upon receipt
of certain certificates or other documents or satisfaction of other conditions, then the
form and/or terms of such certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the exercise of warrants,
the time, manner and place for such Securities to be authenticated and delivered;
(23) whether, under what circumstances and the Currency in which the Company will pay
Additional Amounts as contemplated by Section 1008 on the Securities of the series to any
Holder (including any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts (and the terms of any such
option);
(24) if the Securities of the series are to be convertible into or exchangeable for
any securities of any Person (including the Company), the terms and conditions upon which
such Securities will be so convertible or exchangeable;
(25) whether the Securities of the series are subject to subordination and, if so,
the terms of such subordination; and
(26) any other terms, conditions, rights and preferences (or limitations on such
rights and preferences) relating to the series (which terms shall not be inconsistent with
the requirements of the Trust Indenture Act or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer Securities of such
series shall be substantially identical except, in the case of Registered Securities, as to
denomination and except as may otherwise be provided in or pursuant to such Board Resolution or
pursuant to authority granted by one or more Board Resolutions (subject to Section 303) and set
forth in such Officers Certificate or in any such indenture supplemental
22
hereto. Not all Securities of any one series need be issued at the same time, and, unless
otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
If any of the terms of the Securities of any series are established by action taken pursuant
to one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions,
such Board Resolutions shall be delivered to the Trustee at or prior to the issuance of the first
Security of such series.
SECTION 302. Denominations. The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. With respect to Securities of
any series denominated in Dollars, in the absence of any such provisions with respect to the
Securities of such series, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), shall be issuable in a minimum
denomination of $1,000 and integral multiples of $1,000 above such minimum denomination and the
Bearer Securities of such series, other than the Bearer Securities issued in global form (which may
be of any denomination), shall be issuable in the denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The Securities and any
coupons appertaining thereto shall be executed on behalf of the Company by an individual or
individuals duly authorized by the Board of Directors of the Company to execute the Securities and
the coupons. The signature of any of these authorized persons on the Securities or coupons may be
the manual or facsimile signatures of the present or any future such authorized person and may be
imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of individuals who were at
the time of such execution of the Securities or coupons the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series, together with any coupons appertaining thereto, duly
executed by the Company, to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities; provided, however, that, in
connection with its original issuance, no Bearer Security shall be mailed or otherwise delivered to
any location in the United States; and provided further that, unless otherwise
specified with respect to any series of Securities pursuant to Section 301, a Bearer Security may
be delivered in connection with its original issuance only if the Person entitled to receive such
Bearer Security shall have furnished a certificate in the form set forth in Exhibit A-1 to this
Indenture (or such other certificate as may be specified with respect to any series of Security
pursuant to Section 301), dated no earlier than 15 days prior to the earlier of the date on which
such Bearer Security is delivered and the date on which any temporary Security first becomes
exchangeable for such Bearer Security in accordance with the terms of such temporary Security and
this Indenture. If any Security shall be represented by a permanent global Bearer
23
Security, then, for purposes of this Section and Section 304, the notation of a beneficial
owners interest therein upon original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivery in connection with its original issuance
of such beneficial owners interest in such permanent global Security. Except as permitted by
Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled. If not all the
Securities of any series are to be issued at one time and if the Board Resolution, Officers
Certificate pursuant to a Board Resolution, or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining terms of particular Securities of such series such as
interest rate or formula, maturity, any redemption or repayment provisions, date of issuance and
date from which interest shall accrue.
In authenticating such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall receive, and shall be fully protected
in conclusively relying upon, an Opinion of Counsel stating in effect (subject to customary
exceptions):
(i) that the form or forms of such Securities and any coupons have been established in
conformity with the provisions of this Indenture;
(ii) that the terms of such Securities and any coupons have been established in
conformity with the provisions of this Indenture;
(iii) that such Securities and coupons, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for authentication in accordance with
this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture
and issued in the manner and subject to any conditions specified in such Opinion of Counsel,
will be the legal, valid and binding obligations of the Company enforceable in accordance
with their terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors rights generally
(including without limitation on all laws relating to fraudulent transfers) and to general
principles of equity;
(iv) that all laws and requirements in respect of the execution and delivery by the
Company of such Securities, coupons, if any, and of the supplemental indentures, if any,
have been complied with and that authentication and delivery of such Securities and coupons,
if any, and the execution and delivery of the supplemental indenture, if any, by the Trustee
will not violate the terms of the Indenture;
(v) that the Company has the corporate power to issue such Securities and any coupons
and has duly taken all necessary corporate action with respect to such issuance; and
(vi) that the issuance of such Securities and coupons, if any, will not contravene the
articles of incorporation or by-laws of the Company or result in any
24
violation of any of the terms or provisions of any law or regulation or of any
indenture, mortgage or other agreement known to such Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two paragraphs, if not all
the Securities of any series are to be issued at one time, it shall not be necessary to deliver the
Officers Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion
of Counsel otherwise required pursuant to the preceding two paragraphs prior to or at the time of
issuance of each Security, but such documents shall be delivered prior to or at the time of
issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver any such Securities if the issue
of such Securities pursuant to this Indenture is unlawful or will affect the Trustees own rights,
duties or immunities under the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication and each Bearer
Security shall be dated as of the date specified as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by manual signature of
an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 310 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities. Pending the preparation of definitive Securities
of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form
with one or more coupons or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities or coupons may
determine, as conclusively evidenced by their execution of such Securities or coupons, as the case
may be. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be exchanged in
accordance with the provisions of the following paragraphs), if temporary Securities of any series
are issued, the Company will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
25
series, the temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such series at the office
or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series (accompanied by
any unmatured coupons appertaining thereto), the Company shall execute and the Trustee, upon
receipt of a written instruction, shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series and of like tenor of authorized
denominations; provided, however, that no definitive Bearer Security shall be delivered in exchange
for a temporary Registered Security; and provided further that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the
conditions set forth in Section 303. Until so exchanged the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
If temporary Securities of any series are issued in global form, any such temporary global
Security shall, unless otherwise provided therein, be delivered to the London office of a
depositary or common depositary (the Common Depositary), for the benefit of Euroclear and
Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or
to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date specified in, or determined
pursuant to the terms of, any such temporary global Security (the Exchange Date), the Company
shall deliver to the Trustee definitive Securities of the same series executed by the Company, in
aggregate principal amount equal to the principal amount of such temporary global Security. On or
after the Exchange Date such temporary global Security shall be surrendered by the Common
Depositary to the Trustee, as the Companys agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities of the same series without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such temporary global
Security shall be in bearer form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated by Section 301, and, if
any combination thereof is so specified, as requested by the beneficial owner thereof, provided
that, unless otherwise specified in such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate dated the Exchange Date
or a subsequent date and signed by Clearstream as to the portion of such temporary global Security
held for its account then to be exchanged, each in the form set forth in Exhibit A-2 to this
Indenture (or in such other form as may be established pursuant to Section 301); and provided,
however, that definitive Bearer Securities shall be delivered in exchange for a portion of a
temporary global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest of a beneficial
owner of a temporary global Security shall be exchanged for definitive Securities of
26
the same series and of like tenor following the Exchange Date when the account holder
instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in
Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section
301), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall
be available from the offices of Euroclear and Clearstream, the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the beneficial owners
of such temporary global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like in the event that such Person does not
take delivery of such definitive Securities in person at the offices of Euroclear or Clearstream.
Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary
global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon
delivery by Euroclear and Clearstream to the Trustee or the applicable Paying Agent of a
certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such
other form as may be established pursuant to Section 301), for credit without further interest
thereon on or after such Interest Payment Date to the respective accounts of the Persons who are
the beneficial owners of such temporary global Security on such Interest Payment Date and who have
each delivered to Euroclear or Clearstream, as the case may be, a certificate dated no earlier than
15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set
forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to
Section 301). Notwithstanding anything to the contrary herein contained, the certifications made
pursuant to this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section and of the third paragraph of Section 303 of this Indenture and the
interests of the Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of certification if such date occurs
after the Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if any) or interest, if
any, owing with respect to a beneficial interest in a temporary global Security will be made unless
and until such interest in such temporary global Security shall have been exchanged for an interest
in a definitive Security. Any interest so received by Euroclear and Clearstream and not paid as
herein provided shall be returned to the Trustee or the applicable Paying Agent immediately prior
to the expiration of two years after such Interest Payment Date in order to be repaid to the
Company in accordance with (but otherwise subject to) Section 1003.
SECTION 305. Registration, Registration of Transfer and Exchange. The Company or
the Trustee shall cause to be kept at the Corporate Trust Office of the Trustee a register for each
series of Securities (the registers maintained in the Corporate Trust Office of the Trustee and in
any other office or agency of the Company in a Place of Payment being herein
27
sometimes collectively referred to as the Security Register) in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the registration of
Registered Securities and of transfers of Registered Securities; provided, however, that there
shall be only one Security Register per series of Securities. The Security Register shall be in
written form or any other form capable of being converted into written form within a reasonable
time. At all reasonable times, the Security Register shall be open to inspection by the Trustee.
The Trustee is hereby initially appointed as security registrar (the Security Registrar) for the
purpose of registering Registered Securities and transfers of Registered Securities as herein
provided and for facilitating exchanges of temporary global Securities for permanent global
Securities or definitive Securities, or both, or of permanent global Securities for definitive
Securities, as herein provided.
Upon surrender for registration of transfer of any Registered Security of any series at the
office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee, one or more new
Registered Securities of the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination and of a like aggregate
principal amount, upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with respect to any series
of Securities as contemplated by Section 301, Bearer Securities may not be issued in exchange for
Registered Securities.
If (but only if) expressly permitted in or pursuant to the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers Certificate, or in any indenture
supplemental hereto, delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same series of any
authorized denomination and of a like aggregate principal amount and tenor, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if
there is furnished to them such security or indemnity as they may reasonably require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment; provided, however, that,
except as otherwise provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at
any such office or agency in a permitted exchange for a Registered Security of the same series and
like
28
tenor after the close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities that the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301,
any permanent global Security shall be exchangeable only as provided in this paragraph. Unless
otherwise specified pursuant to Section 301, all Bearer Securities issued in permanent global form,
upon request of the beneficial owner and in accordance with the following provisions, will be
exchangeable for definitive Bearer Securities. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for Securities of such series and
of like tenor and principal amount of another authorized form and denomination, as specified as
contemplated by Section 301 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in any event not later
than the earliest date on which such interest may be so exchanged, the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount equal to the principal
amount of such beneficial owners interest in such permanent global Security, executed by the
Company. On or after the earliest date on which such interests may be so exchanged, such permanent
global Security shall be surrendered by the Common Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the Companys agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive Securities of the
same series without charge, and the Trustee shall authenticate and deliver, in exchange for each
portion of such permanent global Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the series are not
issuable both as Bearer Securities and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security
for which exchange is requested may be among those selected for redemption; and provided,
further, that no Bearer Security delivered in exchange for a portion of a permanent global
Security shall be mailed or otherwise delivered to any location in the United States. If a
definitive Registered Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any
29
Special Record Date and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may
be, in respect of such definitive Registered Security, but will be payable on such Interest Payment
Date or proposed date for payment, as the case may be, only to the Person to whom interest in
respect of such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer, in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
If at any time the Depositary for any permanent global Registered Securities of any series
notifies the Company that it is unwilling or unable to continue as Depositary for such permanent
global Registered Securities or if at any time the Depositary for such permanent global Registered
Securities shall no longer be eligible to so continue under applicable law, the Company shall
appoint a successor Depositary eligible under applicable law with respect to such permanent global
Registered Securities. If a successor Depositary eligible under applicable law for such Registered
Global Securities is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility or if there has occurred and is continuing an Event
of Default with respect to the Securities of any series, the Company will execute, and the Trustee,
upon receipt of the Company Order for the authentication and delivery of definitive Registered
Securities of such series and tenor, will authenticate and deliver such definitive Registered
Securities of such series and tenor, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of such permanent global Registered Securities, in exchange
for such permanent global Registered Securities.
The Company may at any time and in its sole discretion determine that any permanent global
Registered Securities of any series shall no longer be maintained in global form. In such event
the Company will execute, and the Trustee, upon receipt of the Companys order for the
authentication and delivery of definitive Registered Securities of such series and tenor, will
authenticate and deliver, definitive Registered Securities of such series and tenor in any
authorized denominations, in an aggregate principal amount equal to the principal amount of
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such permanent global Registered Securities, in exchange for such permanent global Registered
Securities.
The Company shall not be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of any Securities of that series that may be selected
for redemption under Section 1103 or 1203 and ending at the close of business on (A) if Securities
of the series are issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if Securities of the series are
also issuable as Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so
selected for redemption in whole or in part, except the unredeemed portion of any Security being
redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series and like tenor,
provided that such Registered Security shall be simultaneously surrendered for redemption, or (iv)
to issue, register the transfer of or exchange any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such Security not to be so
repaid.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer that may be imposed under this Indenture with respect to the
Securities of any series pursuant to the terms thereof established as contemplated by Section 301
or under applicable law with respect to any transfer of any interest in any such Security
(including any transfers between or among any depositary (including any Depositary or Common
Depositary), or its nominee, as a Holder of a Security issued in global form, any participants in
such depositary or owners or holders of beneficial interests in any such global Security) other
than to require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms of such Securities if and as
may be so established in respect of such Securities, and to examine the same to determine
substantial compliance as to form with the express requirements thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated
Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing a number not
contemporaneously Outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security or coupon and (ii) such security or indemnity as
may be required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for
the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons
not destroyed, lost or stolen), a new Security of the
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same series and of like tenor and principal amount and bearing a number not contemporaneously
Outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon
appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated,
destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any) and interest, if any,
on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise specified as contemplated
by Section 301, any interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series, with its coupons, if any, issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security, or in exchange for a Security to which a
mutilated, destroyed, lost or stolen coupon appertains, shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen
Security and its coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series and their coupons, if any,
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest
Reset. (a) Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, interest, if any, on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; provided, however, that each installment of
interest, if any, on any Registered Security (other than a global Security) on an Interest Payment
Date may at the Companys option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 309, to the address of
such Person as it appears on the Security Register or (ii) transfer to an account located in the
United States maintained by the payee.
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Unless otherwise provided as contemplated by Section 301 with respect to the Securities
of any series, payment of interest, if any, may be made, in the case of a Bearer Security, by
transfer to an account located outside the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301, every permanent global Security will
provide that interest, if any, payable on any Interest Payment Date will be paid to each of
Euroclear and Clearstream with respect to that portion of such permanent global Security held for
its account by the Common Depositary, for the purpose of permitting each of Euroclear and
Clearstream to credit the interest, if any, received by it in respect of such permanent global
Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate
or formula specified in the Securities of such series (such defaulted interest and, if applicable,
interest thereon herein collectively called Defaulted Interest) may be paid by the Company, at
its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an amount of
money in the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series and except,
if applicable, as provided in Sections 312(b), 312(d) and 312(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted Interest that
shall be not more than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor to be
given in the manner provided in Section 106, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted Interest shall be paid to the
Persons in whose name the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
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(2) The Company may make payment of any Defaulted Interest on the Registered
Securities of any series in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable to any series of Securities
pursuant to Section 301 (with such modifications, additions or substitutions as may be specified
pursuant to such Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an Optional Reset
Date). The Company may exercise such option with respect to such Security by notifying the
Trustee of such exercise at least 50 but not more than 60 days prior to an Optional Reset Date for
such Security. Not later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 106, to the Holder of any such Security a notice
(the Reset Notice) indicating whether the Company has elected to reset the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable), and if so (i)
such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset Date to the next
Optional Reset Date or if there is no such next Optional Reset Date, to the Stated Maturity of
such Security (each such period a Subsequent Interest Period), including the date or dates on
which or the period or periods during which and the price or prices at which such redemption may
occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the
Company may, at its option, revoke the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) provided for in the Reset Notice and establish an
interest rate (or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the
Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate
(or such higher spread or spread multiplier, if applicable) to the Holder of such Security. Such
notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread
or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional
Reset Date, and with respect to which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding
paragraph, will bear such higher interest rate (or such higher spread or spread multiplier, if
applicable).
The Holder of any such Security will have the option to elect repayment by the Company of the
principal of such Security on each Optional Reset Date at a price equal to the principal amount
thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except
that, if the Holder has tendered any Security for repayment pursuant to the
34
Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment
until the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
SECTION 308. [Reserved].
SECTION 309. Persons Deemed Owners. Prior to due presentment of a Registered
Security for registration of transfer, the Company, the Trustee and any agent of the Company or the
Trustee shall treat the Person in whose name such Registered Security is registered as the absolute
owner of such Registered Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Sections 305 and 307) interest, if any, on such Registered
Security and for all other purposes whatsoever, whether or not such Registered Security be overdue,
and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected
by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The
Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Bearer
Security and the bearer of any coupon as the absolute owner of such Bearer Security or coupon for
the purpose of receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupons be overdue, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar shall have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests. The Company, the Trustee
and the Securities Registrar shall deal with any depositary (including any
Depositary or Common Depositary), and any nominee thereof, that is the Holder of any such global
Security for all purposes of this Indenture relating to such global Security (including the payment
of principal, premium, if any, and interest and Additional Amounts, if any, the giving of
instructions or directions by or to the owner or holder of a beneficial ownership interest in such
global Security) as the sole Holder of such global Security and shall have no obligations to the
beneficial owners thereof. None of the Company, the Trustee, any
Paying Agent and the Security
Registrar shall have any responsibility or liability for any acts or omissions of any such
depositary with respect to such global Security, for the records of any such depositary, including
records in respect of beneficial ownership interests in respect of any such global Security, for
any transactions between such depositary and any participant in such depositary or between or among
any such depositary, any such participant and/or any holder or owner of a beneficial interest in
such global Security or for any transfers of beneficial interests in any such global Security.
35
Notwithstanding the foregoing, with respect to any global Security, nothing herein shall
prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished by any depositary (including any
Depositary or Common Depositary), as a Holder, with respect to such global Security or impair, as
between such depositary and owners of beneficial interests in such global Security, the operation
of customary practices governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
SECTION 310. Cancellation. All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or exchange or for
credit against any current or future sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Securities and coupons so delivered to the
Trustee shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which
the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by
the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All cancelled
Securities and coupons held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures and, if requested by the Company in writing, the Trustee shall provide
certification of their disposal to the Company, unless by Company Order the Company shall timely
direct that cancelled Securities be returned to it.
SECTION 311. Computation of Interest. Except as otherwise specified as contemplated
by Section 301 with respect to Securities of any series, interest, if any, on the Securities of
each series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of Securities. (a) Unless
otherwise specified with respect to any series of Securities pursuant to Section 301, with respect
to Registered Securities of any series not permitting the election provided for in paragraph (b)
below or the Holders of which have not made the election provided for in paragraph (b) below, and
with respect to Bearer Securities of any series, except as provided in paragraph (d) below, payment
of the principal of (and premium, if any) and interest, if any, on any Registered Security or
Bearer Security of such series will be made in the Currency in which such Registered Security or
Bearer Security, as the case may be, is payable. The provisions of this Section 312 may be
modified or superseded with respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to Registered Securities of any
series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive
payments of principal of (or premium, if any) or interest, if any, on such Registered Securities
in any of the Currencies which may be designated for such election by
36
delivering to the Trustee a written election with signature guarantees and in the applicable
form established pursuant to Section 301, not later than the close of business on the Election
Date immediately preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such Holder or any
transferee of such Holder until changed by such Holder or such transferee by written notice to the
Trustee (but any such change must be made not later than the close of business on the Election
Date immediately preceding the next payment date to be effective for the payment to be made on
such payment date and no such change of election may be made with respect to payments to be made
on any Registered Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article Four or Fourteen or
with respect to which a notice of redemption has been given by the Company or a notice of option
to elect repayment has been sent by such Holder or such transferee). Any Holder of any such
Registered Security who shall not have delivered any such election to the Trustee not later than
the close of business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in Section 312(a). The Trustee shall
notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate
principal amount of Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the election referred to in
paragraph (b) above has been provided for pursuant to Section 301, then, unless otherwise
specified pursuant to Section 301, not later than the fourth Business Day after the Election Date
for each payment date for Registered Securities of any series, the Exchange Rate Agent will
deliver to the Company a written notice specifying the Currency in which Registered Securities of
such series are payable, the respective aggregate amounts of principal of (and premium, if any)
and interest, if any, on the Registered Securities to be paid on such payment date and the amounts
in such Currency so payable in respect of the Registered Securities as to which the Holders of
Registered Securities of such series shall have elected to be paid in another Currency as provided
in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for
pursuant to Section 301 and if at least one Holder has made such election, then, unless otherwise
specified pursuant to Section 301, on the second Business Day preceding such payment date the
Company will deliver to the Trustee an Exchange Rate Officers Certificate in respect of the
Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar or Foreign Currency amount receivable by Holders of Registered
Securities who have elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in effect on the
third Business Day (the Valuation Date) immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the
Securities are denominated or payable other than pursuant to an election provided for pursuant to
paragraph (b) above, then with respect to each date for the payment of principal of (and premium,
if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign
Currency occurring after the last date on which such Foreign Currency was used (the Conversion
Date), the Dollar shall be the Currency of payment for use on each such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar amount to
37
be paid by the Company to the Trustee and by the Trustee or any Paying Agent to the Holders
of such Securities with respect to such payment date shall be, in the case of a Foreign Currency
other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a
currency unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder of a Registered
Security denominated in any Currency shall have elected to be paid in another Currency as provided
in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been made in the absence
of such election; and if a Conversion Event occurs with respect to the Currency in which payment
would have been made in the absence of such election, such Holder shall receive payment in Dollars
as provided in paragraph (d) above.
(f) The Dollar Equivalent of the Foreign Currency shall be determined by the Exchange Rate
Agent and shall be obtained for each subsequent payment date by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The Dollar Equivalent of the Currency Unit shall be determined by the Exchange Rate
Agent and subject to the provisions of paragraph (h) below shall be the sum of each amount
obtained by converting the Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312 the following terms shall have the following meanings:
A Component Currency shall mean any Currency which, on the Conversion Date, was a
component currency of the relevant currency unit.
A Specified Amount of a Component Currency shall mean the number of units of such
Component Currency or fractions thereof which were represented in the relevant currency unit
on the Conversion Date. If after the Conversion Date the official unit of any Component
Currency is altered by way of combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the same proportion. If after the
Conversion Date two or more Component Currencies are consolidated into a single currency,
the respective Specified Amounts of such Component Currencies shall be replaced by an amount
in such single Currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single Currency, and such amount shall
thereafter be a Specified Amount and such single Currency shall thereafter be a Component
Currency. If after the Conversion Date any Component Currency shall be divided into two or
more currencies, the Specified Amount of such Component Currency shall be replaced by
amounts of such two or more currencies, having an aggregate Dollar Equivalent value at the
Market Exchange Rate on the date of such replacement equal to the Dollar Equivalent value of
the Specified Amount of such former Component Currency at the Market Exchange Rate
38
immediately before such division and such amounts shall thereafter be Specified Amounts
and such currencies shall thereafter be Component Currencies. If, after the Conversion Date
of the relevant currency unit, a Conversion Event (other than any event referred to above in
this definition of Specified Amount) occurs with respect to any Component Currency of such
currency unit and is continuing on the applicable Valuation Date, the Specified Amount of
such Component Currency shall, for purposes of calculating the Dollar Equivalent of the
Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
Election Date shall mean the date for any series of Registered Securities as
specified pursuant to clause (13) of Section 301 by which the written election referred to
in paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of
the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and
changes in the Specified Amounts as specified above shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the Company, the Trustee and all Holders
of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a Conversion Event has occurred
with respect to a Foreign Currency, the Company will immediately give written notice thereof to the
Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the
manner provided for in Section 106 to the affected Holders) specifying the Conversion Date. In the
event the Company so determines that a Conversion Event has occurred with respect to any Foreign
Currency unit in which Securities are denominated or payable, the Company will immediately give
written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly
thereafter give notice in the manner provided for in Section 106 to the affected Holders)
specifying the Conversion Date and the Specified Amount of each Component Currency on the
Conversion Date. In the event the Company determines in good faith that any subsequent change in
any Component Currency as set forth in the definition of Specified Amount above has occurred, the
Company will similarly give written notice to the Trustee and the Exchange Rate Agent. The Trustee
shall be fully justified and protected in conclusively relying and acting upon information received
by it from the Company and the Exchange Rate Agent and shall not otherwise have any duty or
obligation to determine the accuracy or validity of such information independent of the Company or
the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent. (a)
Unless otherwise specified pursuant to Section 301, if and so long as the Securities of any series
(i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company will maintain with
respect to each such series of Securities, or as so required, at least one Exchange Rate Agent.
The Company will cause the Exchange Rate Agent to make the necessary foreign exchange
determinations at the time and in the manner specified pursuant to Section 301 for the purpose of
determining the applicable rate of exchange and, if applicable, for
39
the purpose of converting the denominated Currency into the applicable payment Currency for
the payment of principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate
Agent pursuant to this Section shall become effective until the acceptance of appointment by the
successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company and
the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if
a vacancy shall occur in the office of the Exchange Rate Agent for any cause with respect to the
Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor Exchange Rate
Agent may be appointed with respect to the Securities of one or more or all of such series and
that, unless otherwise specified pursuant to Section 301, at any time there shall only be one
Exchange Rate Agent with respect to the Securities of any particular series that are originally
issued by the Company on the same date and that are initially denominated and/or payable in the
same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall upon
Company Request cease to be of further effect with respect to any series of Securities specified in
such Company Request (except as to any surviving rights of registration of transfer or exchange of
Securities of such series expressly provided for herein or pursuant hereto, and any right to
receive Additional Amounts, as contemplated by Section 1008) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and delivered and
all coupons, if any, appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been waived as provided
in Section 305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of such series for whose
payment money has theretofore been deposited in trust with the Trustee or any Paying
Agent or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
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(B) all Securities of such series and, in the case of (i) or (ii) below, any
coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) if redeemable at the option of the Company, are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust for such purpose
an amount, in the Currency in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest, if any, to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder or
under the Securities; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 606 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003, the last sentence of Section 1011, and the
penultimate paragraph of Section 1405 shall survive.
SECTION 402. Application of Trust Money. Subject to the provisions of the last
paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the extent required by
law. Money so held in trust is subject to the Trustees rights under Section 606.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. Event of Default, wherever used herein with
respect to Securities of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest on any Security of that series, or any
related coupon, when such interest or coupon becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security
of that series when due and payable; or
(3) default in the deposit of any principal payment into the sinking fund, when and
as due by the terms of any Security of that series and Article Twelve; or
(4) failure by the Company to comply with its obligations under Section 801 hereof;
or
(5) default in the performance, or breach, of any covenant or agreement of the
Company in this Indenture which affects or is applicable to the Securities of that series
(other than a default in the performance or breach of a covenant or agreement that is
elsewhere in this Section specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of other series of Securities), and continuance of
such default or breach for a period of 75 days after receipt of notice given, by
registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of all Outstanding Securities
of that series a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a Notice of Default hereunder; or
(6) default by the Company or any of its Subsidiaries with respect to any mortgage,
agreement or other instrument under which there may be outstanding, or by which there may
be secured or evidenced, any Indebtedness for money borrowed in excess of $25 million in
the aggregate of the Company and/or any such Subsidiary (it being
understood that the amount of any Indebtedness will be determined
after giving effect to any other repayment thereof), whether such Indebtedness now
exists or shall hereafter be created (i) resulting in such Indebtedness becoming or being
declared due and payable, if such declaration of acceleration is not rescinded or annulled
within 10 days after the Company has received notice of such acceleration or (ii)
constituting a failure to pay the principal or interest of any such debt in an amount in
excess of $25 million when due and payable at its stated maturity, upon required
repurchase, upon declaration of acceleration or otherwise, if such default is not cured or
waived within 10 days after the date when the payment was due; provided that, in the case
of clause (i), if such declaration of acceleration is annulled or rescinded or, in the
case of clause (ii), if such default is cured or waived,
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the
related Event of Default with respect to the notes will be deemed to be cured for
purposes of this Indenture; or
(7) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or any of its Significant Subsidiaries in an
involuntary case or proceeding under Bankruptcy Law or (B) a decree or order adjudging the
Company or any of its Significant Subsidiaries as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or a Significant Subsidiary, under any applicable federal
or state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or a Significant Subsidiary or of
any substantial part of their property, or ordering the winding up or liquidation of their
affairs, and the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive days; or
(8) the commencement by the Company or a Significant Subsidiary of a voluntary case
or proceeding under Bankruptcy Law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by them to the entry of a decree or order for relief
in respect of the Company or a Significant Subsidiary is an involuntary case or proceeding
under Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or
proceeding against them, or the filing by them of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the consent by them
to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of
the Company or a Significant Subsidiary or of any substantial part of their property, or
the making by them of an assignment for the benefit of creditors, or the admission by them
in writing of their inability to pay their debts generally as they become due; or
(9) a final judgment for the payment of $25 million or more (excluding any amounts
covered by insurance) rendered against the Company or any of its Subsidiaries, which
judgment is not discharged or stayed within 60 days after (i) the date on which the right
to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which
all rights to appeal have been extinguished; or
(10) there occurs any other Event of Default provided pursuant to Section 301 or 901
with respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an Event of
Default described in clause (1), (2), (3), (4), (5), (6), (9) or (10) of Section 501 with respect
to Securities of any series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the Securities of that series
are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount
as may be specified in the terms of that series) of all of the Outstanding Securities of that
series and any accrued and unpaid cash interest through the date of such declaration, to be due and
payable
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immediately, by a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
(or of all series, as the case may be) has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders
of a majority in principal amount of the Outstanding Securities of that series (or of all series,
as the case may be) by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay in the
Currency in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)),
(A) all overdue interest, if any, on all Outstanding Securities of that series
(or of all series, as the case may be) and any related coupons,
(B) all unpaid principal of (and premium, if any) any Outstanding Securities of
that series (or of all series, as the case may be) which has become due otherwise
than by such a declaration of acceleration, and interest on such unpaid principal
(or premium) at the rate or rates prescribed therefor in such Securities or, if no
such rate or rates are so prescribed, at the rate borne by the Securities during the
period of such default,
(C) to the extent that payment of such interest is enforceable under applicable
law, interest upon overdue interest to the date of such payment or deposit at the
rate or rates prescribed therefor in such Securities or, if no such rate or rates
are so prescribed, at the rate borne by the Securities during the period of such
default, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that series (or of all
series, as the case may be), other than the non-payment of the principal of (or premium,
if any, on) or interest, if any, on Securities of that series (or of all series, as the
case may be) which have become due solely by such an acceleration, have been cured or
waived as provided in Section 513.
If an Event of Default described in clause (7) or (8) with respect to the Company occurs and is
continuing, then the principal amounts (or, if the Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the principal amount as may be specified
in the terms of that series) of all the Securities then Outstanding, together with any accrued
interest through the occurrence of such Event of Default, shall become and be due and payable
immediately, without any declaration or other act by the Trustee or any other Holder.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The
Company covenants that (1) in case default shall be made in the payment of any installment of
interest on any Security of any series and any related coupon, as and when the same shall become
due and payable, and such default shall have continued for a period of 30 days, or (2) in case
default shall be made in the payment of the principal (or premium, if any, on) any Security of any
series at its Maturity then, upon demand of the Trustee, the Company will pay to the Trustee (such
demand and payment in the case of Bearer Securities to occur only outside of the United States, for
the benefit of the Holders of Securities of such series and coupons, the whole amount that then
shall have become due and payable on such Securities and coupons of that series for principal and
any premium or interest, or both, as the case may be, with interest upon the overdue principal and
(to the extent that payment of such interest is enforceable under applicable law) upon overdue
installments of interest at the rate borne by or provided for in such Securities during the period
of such default, and, in addition thereto, such further amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys 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.
If an Event of Default with respect to Securities of any series (or of all series, as the case
may be) occurs and is continuing, the Trustee may proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series (or of all series, as the case may be) and any
related coupons by such appropriate judicial proceedings necessary to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other obligor upon the
Securities of a series or the property of the Company or such other obligor or their creditors, the
Trustee, irrespective of whether the principal of the Securities of any series shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of any overdue principal,
premium, if any, or interest, shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(1) to file and prove a claim for the whole amount of principal (and premium, if any)
(or if the case of Original Issue Discount Securities or Indexed Securities, such portion
of the principal amount as may be specified in the terms of such series) and interest, if
any, owing and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding; and
(2) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same (which distribution, in the case of Bearer
Securities or coupons appertaining thereto, shall occur only outside the United States);
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the agreed upon compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities. All
rights of action and claims under this Indenture or the Securities or coupons may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the agreed upon compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money or property collected by the
Trustee pursuant to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account of principal or any
premium and interest, upon presentation of the Securities or coupons, or both, as the case may be
(such presentation, in the case of Bearer Securities or coupons, to occur only outside the United
States) and the notation thereon of the payment if only partially paid and upon surrender thereof
if fully paid:
First: To the payment of all amounts due the Trustee under Section 606;
Second: To the payment (such payment, in the case of Bearer Securities or coupons, to
occur only outside the United States) of the amounts then due and unpaid for principal of
and any premium and interest on the Securities and coupons in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities and coupons for
principal and any premium and interest, respectively; and
Third: To the payment of the remainder, if any, to the Company, or as a court of
competent jurisdiction may direct in writing.
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SECTION 507. Limitation on Suits. No Holder of any Security of any series or any
related coupons shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder shall have previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders shall have offered to the Trustee reasonable indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4)
the Trustee for 75 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such proceeding; and
(5) no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 512 during such 75-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holders of Securities, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable and common benefit of all of
such Holders of Securities (it being understood that the Trustee does not have an affirmative duty
to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security
or coupon shall have the right, which is absolute and unconditional, to receive payment as provided
herein and in such Security of the principal and any premium and interest on such Security or
payment of any related coupon on the respective Stated Maturity or Maturities expressed in such
Security or coupon (or, in the case of redemption or repayment at the option of the Holder, on the
Redemption Date or Repayment Date, as the case may be) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and
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remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided with
respect to replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in
Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders
of Securities and coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the Trustee or
of any Holder of any Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders. With respect to the Securities of any series, the
Holders of a majority in principal amount of the Outstanding Securities of such series shall have
the right to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to
Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of law or with this
Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction,
(3) with respect to actions relating to the Outstanding Securities of any one series,
such direction is not unduly prejudicial to the rights of Holders of Securities of such
series not taking part in such direction, and
(4) such direction would not involve the Trustee in personal liability, as the
Trustee, upon being advised by counsel, shall reasonably determine.
SECTION 513. Waiver of Past Defaults. Subject to Section 502, the Holders of a
majority in principal amount of Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default with respect to such series and its
consequences, except, in each case, a default:
(1) in respect of the payment of the principal of or any premium and interest on any
Security or any related coupon, or
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(2) in respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding Security of such
series, or all series, as the case may be, affected.
Upon any such waiver, any such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture, and the Company,
the Trustee and Holders shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs. All parties to this Indenture agree, and each
Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys fees and expenses, 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 shall not apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the enforcement of the payment
of the principal of (or premium if any, on) or interest on any Securities on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of redemption or repayment, on
or after the Redemption Date or Repayment Date, as the case may be).
SECTION 515. Waiver of Stay or Extension Laws. The Company covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence of any Default
hereunder actually known to a Responsible Officer of the Trustee with respect to the Securities of
any series, the Trustee shall transmit, in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder, unless such Default shall have been cured or waived;
provided, however, that, except in the case of a Default in the payment of the principal of (or
premium, if any) or interest, if any, on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee
49
in good faith determine that the withholding of such notice is in the interest of the Holders
of Securities of such series and any related coupons; and, provided further, that
in the case of any default or breach of the character specified in Section 501(5) with respect to
Securities and coupons of such series, no such notice to Holders shall be given until at least 30
days after the occurrence thereof.
SECTION 602. Certain Duties, Responsibilities and Rights of Trustee. Subject to the
provisions of TIA Sections 315(a) through 315(d):
(1) except during the continuance of an Event of Default,
(a) | the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and | ||
(b) | 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 same to determine whether or not they conform to the requirements of this Indenture, but shall not be required to verify the content thereof; |
(2) if any Event of Default has occurred and is continuing with respect to the
Securities of any series, the Trustee shall exercise such of the rights and powers vested
in it by 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 such
persons own affairs;
(3) the Trustee may not be relieved from liabilities for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(a) | this subparagraph (3) does not limit the effect of subparagraph (1) of this paragraph or the penultimate paragraph of this Section 602; | ||
(b) | 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; and | ||
(c) | the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with a direction received by it pursuant to Section 512; |
50
(4) the Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(5) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board of
Directors of the Company may be sufficiently evidenced by a Board Resolution of the
Company;
(6) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely upon an
Officers Certificate;
(7) the Trustee may consult with counsel of its selection and the advice or written
opinion of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(8) 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 of
Securities of any series or any related coupons pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to
it against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(9) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company personally or by agent or attorney;
(10) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents, attorneys, custodians, or
nominees and the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent, attorney, custodian, or nominee appointed with due care by it
hereunder;
(11) the Trustee shall not be liable for any action taken, suffered or omitted by it
in good faith and believed by it to be authorized or within the rights or powers conferred
upon it by this Indenture;
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(12) in the event that the Trustee is also acting as Paying Agent, Security Registrar
or in any other capacity hereunder, the rights, privileges, protections, immunities and
benefits afforded to the Trustee pursuant to this Article Six, including, without
limitation, its right to be indemnified, shall also be afforded to the Trustee in its
capacity as such Paying Agent, Security Registrar or in such other capacity and each
agent, custodian and other Person employed to act hereunder;
(13) other than in the case of an Event of Default described under clauses (1), (2)
or (3) of Section 501, the Trustee shall not be deemed to know or be charged with
knowledge of any Default or Event of Default with respect to the Securities of any series
for which it is acting as Trustee unless a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the Trustee from the
Company or a Holder of such Securities and such notice references this Indenture and such
Securities;
(14) the Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder; and
(15) in no event shall the Trustee be responsible or liable for special, indirect,
punitive or consequential loss or damage.
Notwithstanding anything to the contrary provided in this Indenture, the Trustee shall not be
required 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.
Whether or not therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the Trustee shall be subject
to the provisions of this Section 602.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except for the Trustees certificates of
authentication, and in any coupons shall be taken as the statements of the Company and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or of the Securities
or coupons, except that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true
and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities and coupons and,
subject to TIA Sections 310(b) and 311, may otherwise deal with the Company with the
52
same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall be agreed in
writing between the Company and the Trustee for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its gross
negligence or willful misconduct; and
(3) to indemnify the Trustee and any predecessor trustee and its and their
officers, directors, employees, and agents for, and to hold it or them harmless against,
any loss, liability or expense incurred without gross negligence or willful misconduct
on its or their part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and expenses
(including reasonable fees and expenses of counsel) of defending itself or themselves
against any claim or liability in connection with the exercise or performance of any of
its or their powers or duties hereunder.
The obligations of the Company under this Section to compensate the Trustee, to pay or
reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless
the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture, the resignation or removal of the Trustee and the termination of
this Indenture for any reason. As security for the performance of such obligations of the Company,
the Trustee shall have a claim and lien prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of principal of (or
premium, if any) or interest, if any, on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 501(7) or (8), the expenses (including reasonable charges and expenses of its
counsel) of and the compensation for such services are intended to constitute expenses of
administration under any applicable U.S. federal or state bankruptcy, insolvency or other similar
law.
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The provisions of this Section shall survive the satisfaction and discharge of this
Indenture, the termination of this Indenture for any reason and the earlier resignation or removal
of the Trustee.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests;
Disqualification. There shall be at all times a Trustee hereunder which shall be eligible to
act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and surplus of at
least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of U.S. federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article. If the Trustee shall have or
acquire any conflicting interest within the meaning of the Trust Indenture Act, it shall either
eliminate such conflicting interest or resign to the extent, in the manner and with the effect, and
subject to the conditions, provided in the Trust Indenture Act and this Indenture. For purposes of
Section 310(b)(1) of the Trust Indenture Act and to the extent permitted thereby, the Trustee, in
its capacity as trustee in respect of the Securities of any series, shall not be deemed to have a
conflicting interest arising from its capacity as trustee in respect of the Securities of any other
series. Nothing contained herein shall prevent the Trustee from filing the application provided
for in the second to last sentence of Section 310(b) of the Trust Indenture Act.
SECTION 608. Resignation and Removal; Appointment of Successor. No resignation or
removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 609 and any and all amounts then due and owing to the
Trustee hereunder have been paid in full.
(a) The Trustee may resign at any time with respect to the Securities of one or more series
by giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition, at the expense of
the Company, any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(b) The Trustee may be removed at any time with respect to the Securities of any series by
Act of the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company. If the instrument of acceptance by a successor
Trustee required by Section 609 shall not have been delivered to the Trustee within 60 days after
the giving of such notice of removal, the Trustee being removed may petition, at the expense of
the Company, any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
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(c) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after
written request therefor by the Company or any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and shall fail to resign
after written request therefor by the Company or any Holder who has been a bona fide
Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the Trustee with respect
to all Securities, or (ii) subject to TIA Section 315(e), any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
(d) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the Securities of any
particular series). If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities
of such series delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(e) The Company shall give written notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series to the Holders of Securities of such series in the manner
provided for in Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust Office.
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SECTION 609. Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee with respect to all Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the written request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim and lien provided for in Section 606.
(a) 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 each
successor Trustee with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each 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, each 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 all
Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (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; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject nevertheless to its
claim and lien provided for in Section 606. Whenever there is a successor Trustee with respect to
one or more (but less than all) series of securities issued pursuant to this Indenture, the terms
Indenture and Securities shall have the meanings specified in the provisos to the respective
definitions of those terms in Section 101 which contemplate such situation.
(b) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
56
successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of
this Section, as the case may be.
(c) No successor Trustee shall accept its appointment unless at the time of such acceptance
such successor Trustee shall be qualified and eligible under this Article. The Trustee shall have
no liability or responsibility for the action or inaction of any successor Trustee.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business. Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case any Securities or
coupons shall have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities or coupons so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities or coupons. In case any of the
Securities shall not have been authenticated by such predecessor Trustee, any successor Trustee may
authenticate and deliver such Securities or coupons either in the name of any predecessor hereunder
or in the name of the successor Trustee. In all such cases such certificates shall have the full
force and effect which this Indenture provides for the certificate of authentication of the
Trustee; provided, however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or consolidation.
SECTION 611. Appointment of Authenticating Agent. At any time when any of the
Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series and the Trustee shall give written notice of such
appointment to all Holders of Securities of the series with respect to which such Authenticating
Agent will serve, in the manner provided for in Section 106. Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument
in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be
promptly furnished to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustees certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any state thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by U.S. federal or state authority. If such corporation
publishes reports of condition at least annually,
57
pursuant to law or to the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve, in the manner provided for in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section. The Trustee shall have no liability or responsibility for
the action or inaction of any Authenticating Agent (that is not the Trustee).
The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustees certificate of
authentication, an alternate certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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Wilmington Trust FSB, as Trustee |
||||
By | ||||
As Authenticating Agent | ||||
By | ||||
Authorized Signatory |
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every Holder of
Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee
that neither of the Company, or the Trustee or any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names and addresses of
the Holders in accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15 of each year
commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture,
the Trustee shall transmit to the Holders of Securities, in the manner and to the extent provided
in TIA Section 313(c), a brief report dated as of such May 15 if required by TIA Section 313(a).
The Company will promptly notify the Trustee in writing when any series of Securities are listed on
any stock exchange and of any delisting thereof.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange if any, upon which the Securities are listed and with the Company.
SECTION 703. Reports by Company. The Company shall:
(1) Unless available on EDGAR, file with the Trustee, within 15 days after the
Company, as the case may be, has filed the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is no longer required
to file information, documents or reports pursuant to either of such Sections, then it
shall file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
59
(2) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit to all Holders, in the manner and to the extent provided in TIA Section
313(c), within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee, which if pursuant to an
EDGAR filing, the Trustee is not required to confirm, is for informational purposes only and the
Trustees receipt of such shall not constitute constructive notice of the filing of such a report,
its timeliness or any information contained therein or determinable from information contained
therein, including compliance by the Company with any of its covenants hereunder (as to which the
Trustee is entitled to conclusively rely exclusively on Officers Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms. The Company may
not consolidate with or merge into any other Person or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any Person, unless:
(1) The successor or transferee Person, if other than the Company formed by such
consolidation or into which the Company is merged or to which the Companys properties and
assets are conveyed, transferred or leased as an entirety or substantially as an entirety
is organized and existing under the laws of the United States, any state thereof or the
District of Columbia and expressly assumes by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest on each series of
Outstanding Securities and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed by the Company;
(2) immediately after giving effect to such transaction, no Event of Default and no
event which, after notice or lapse of time or both, would become an Event of Default shall
have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease as
an entirety or substantially as an entirety and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture complies
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with this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 802. Successor Person Substituted. Upon any consolidation by the Company
with or merger by the Company with or into any other Person or any conveyance, transfer or lease of
the properties and assets of the Company as an entirety or substantially as an entirety to any
Person in accordance with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, and be subject to every
obligation of, the Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and in the event of any such conveyance or transfer, the
Company (which terms shall for this purpose mean the Person named as the Company in the first
paragraph of this Indenture or any previous successor Person which had become such in the manner
described in Section 801), except in the case of a lease, shall be discharged of all obligations
and covenants under this Indenture and the Securities and any coupons appertaining thereto and may
be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. Without the
consent of any Holders, the Company when authorized by or pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company contained herein and in the Securities
and any related coupons in accordance with Article Eight; or
(2) to add to the covenants of the Company for the benefit of the Holders of all or
any series of Securities and any related coupons (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are being
included solely for the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders of all or
any series of Securities and any related coupons (and if such Events of Default are to be
for the benefit of less than all series of Securities, stating that such Events of Default
are being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to provide that
Bearer Securities may be registrable as to principal, to change or eliminate any
restrictions on the payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the issuance of Securities in
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uncertificated form, provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons in any
material respect; or
(5) to change or eliminate any of the provisions of this Indenture; provided that any
such change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental indenture
which is entitled to the benefit of any such provision; or
(6) to establish the form or terms of Securities of any series and any related
coupons as permitted by Sections 201 and 301, including the provisions and procedures
relating to Securities convertible into or exchangeable for any securities of any Person
(including the Company); or
(7) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 609(b); or
(8) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities of any series and any related
coupons in any material respect; or
(9) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Sections 401, 1402 and 1403; provided that any such action shall not adversely
affect the interests of the Holders of Securities of such series and any related coupons
or any other series of Securities in any material respect; or
(10) to comply with any requirements of the Commission in connection with the
qualification of this Indenture under the Trust Indenture Act; or
(11) to conform the text of this Indenture or the Notes to any provision of the
description of notes in the applicable prospectus supplement, prospectus or offering document.
SECTION 902. Supplemental Indentures with Consent of Holders. With the consent of
the Holders of a majority in principal amount of all Outstanding Securities of each series affected
by such supplemental indenture (considered together as one class for this purpose), by Act of said
Holders delivered to the Company and the Trustee and the Company when authorized by or pursuant to
a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture which affect such Securities or of modifying in any manner the rights
of the Holders of such Securities under this
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Indenture; provided, however, that no such supplemental indenture shall, without the consent
of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of (or premium, if any) or any
installment of principal of or interest on any Security; or the terms of any sinking fund
with respect to any Security; or reduce the principal amount thereof (or premium, if any)
or the rate of interest (or manner of calculating the rate of interest), if any, thereon,
or any premium payable upon the redemption thereof, or repayment thereof at the option of
the Holder, or the date(s) or period(s) for any redemption or repayment thereof, or change
any obligation of the Company to pay Additional Amounts contemplated by Section 1008
(except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the
amount of the principal of an Original Issue Discount Security of such series that would
be due and payable upon an acceleration of the Maturity thereof pursuant to Section 502,
or upon the redemption thereof, or the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of repayment at the option of any Holder of any
Security of such series, or change any Place of Payment where, or the Currency in which,
any Security of such series or any premium or interest thereon is payable; or impair the
right to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption or repayment at the option of the Holder,
on or after the Redemption Date or Repayment Date, as the case may be), or modify the
provisions of this Indenture with respect to the mandatory redemption of Securities or
repayment of the Securities at the option of the Holder in a manner adverse to any Holder
of any Securities or any coupons appertaining thereto, or adversely affect any right to
convert or exchange any Security as may be provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding Securities of any
series the consent of whose Holders is required for any such supplemental indenture or for
any waiver of compliance with certain provisions of this Indenture which affect such
series or certain defaults applicable to such series hereunder and their consequences
provided for in this Indenture, or reduce the requirements of Section 1504 for quorum or
voting with respect to Securities of such series, or
(3) modify any of the provisions of this Section or Section 513, except to increase
any such percentage or to provide that certain other provisions of this Indenture which
affect such series cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
SECTION 903. Execution of Supplemental Indentures. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and shall
be fully protected in conclusively relying upon, an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture.
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The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder and
of any coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures. Securities of any
series authenticated and delivered after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a notation in form satisfactory to the
Trustee as to any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the opinion of the Trustee,
the Company to any such supplemental indenture may be prepared and executed by the Company, and
authenticated and delivered (which delivery, in the case of Bearer Securities, shall occur only
outside the United States) by the Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures. Promptly after the execution by the
Company and the Trustee of any supplemental indenture pursuant to the provisions of Section 902,
the Company shall give written notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the substance of such
supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest. The Company
covenants and agrees for the benefit of the Holders of each series of Securities and any related
coupons that it will duly and punctually pay the principal of and any premium and interest on the
Securities of that series in accordance with the terms of the Securities, any coupons appertaining
thereto and this Indenture. Principal of, and premium, if any, on the Securities shall be
considered paid on the date it is due if the Trustee holds by 11:00 a.m. New York City time on that
date Currency designated for and sufficient to pay all principal and premium, if any, then due.
Unless specified as contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be payable only upon
presentation and surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency. If Securities of a series are
issuable only as Registered Securities, the Company shall maintain in each Place of Payment for
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any series of Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered for registration of
transfer or exchange, where Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be served. If any
Securities of a series are issuable as Bearer Securities, the Company will maintain (A) an office
or agency where any Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where Securities of that
series that are convertible or exchangeable may be surrendered for conversion or exchange, as
applicable, where notices and demands to or upon the Company in respect of the Securities of that
series and related coupons and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph below (and not otherwise), (B) if Bearer Securities are
issued, subject to any laws or regulations applicable thereto, in a Place of Payment for that
series which is located outside the United States, an office or agency where Securities of that
series and related coupons may be presented and surrendered for payment; provided, however, that if
the Securities of that series are listed on any stock exchange located outside the United States
and such stock exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in any required city located outside the United States, so long as the
Securities of that series are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the United States, an
office or agency where any Registered Securities of that series may be surrendered for registration
of transfer, where Securities of that series may be surrendered for exchange, where Securities of
that series that are convertible or exchangeable may be surrendered for conversion or exchange, as
applicable, and where notices and demands to or upon the Company in respect of the Securities of
that series and related coupons and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location, of each such office
or agency. If at any time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and surrendered for payment only
outside the United States, at the offices specified in the Security, and the Company hereby
appoints the Trustee as its agent to receive such respective presentations, surrenders, notices and
demands. Unless otherwise specified with respect to any Securities as contemplated by Section 301
with respect to a series of Securities, the Company hereby designates as a Place of Payment for
each series of Securities the Corporate Trust Office of the Trustee, and initially appoints the
Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all
such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment
of principal, premium or interest on Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in the United States or by transfer
to an account maintained with a bank located in the United States; provided, however, that
notwithstanding anything to the contrary contained herein, if the Securities of a series are
payable in Dollars, payment of principal of (and premium, if any) and interest, if any, on any
Bearer Security shall be made at the office of the Paying Agent, if (but only if) payment
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in Dollars of the full amount of such principal, premium or interest, as the case may be, at
all offices or agencies outside the United States maintained for such purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all of such
purposes, and may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its obligation to maintain an
office or agency in accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.
Unless otherwise specified with respect to any Securities pursuant to Section 301 with respect to a
series of Securities, subject to the immediately preceding paragraph, the Company hereby designates
as a Place of Payment for each series of Securities the Corporate Trust Office of the Trustee, and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and as
its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be
payable in a Foreign Currency, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of Securities, or as so
required, at least one Exchange Rate Agent. The Trustee shall have no liability or responsibility
for the action or inaction of any Paying Agent or Exchange Rate Agent (provided neither is the
Trustee).
SECTION 1003. Money for Securities Payments to Be Held in Trust. If the Company
shall at any time act as its own Paying Agent with respect to any series of Securities and any
related coupons, it will, on or before each due date of the principal of or any premium and
interest on any of the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the
principal and any premium and interest on Securities of such series so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee in writing of its action or failure so to act.
Whenever there shall be one or more Paying Agents other than the Company for any series of
Securities and any related coupons, it will, prior to each due date of the principal of or any
premium and interest on any Securities, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay such amount so becoming due, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall
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agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will
(i) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, and upon written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment
in respect of the Securities.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.
Except as provided in the Securities of any series, and subject to any applicable abandoned
property laws, any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of or any premium or interest on any Security of
any series, or any coupon appertaining thereto, and remaining unclaimed for two years after such
principal, premium and interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of
such Security or coupon shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required to
make any such repayment, shall at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company ending after the date
hereof, an Officers Certificate, one of the signers of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the Company stating whether
or not to the best knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which they may have
knowledge.
The Company shall, so long as any of Securities of any series are Outstanding, deliver to the
Trustee, forthwith, but in no event later than 30 Business Days, upon any Officer becoming aware of
any event which after notice or lapse of time would become a Default or Event of Default under
Section 501, a notice specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
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SECTION 1005. Existence. Subject to Article Eight, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however, that the Company shall not be required
to preserve any such right or franchise if its Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Further Instruments and Acts. Upon request of the Trustee or as
otherwise necessary, the Company will execute and deliver such further instruments and do such
further acts or as otherwise necessary may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 1007. Calculation of Original Issue Discount. The Company shall file with
the Trustee promptly at the end of each calendar year a written notice specifying the amount of
original issue discount (including daily rates and accrual periods), if any, accrued on Outstanding
Securities as of the end of such year.
SECTION 1008. Additional Amounts. If any Securities of a series provide for the
payment of additional amounts to any Holder who is not a United States person in respect of any
tax, assessment or governmental charge (Additional Amounts), the Company will pay to the Holder
of any Security of such series or any coupon appertaining thereto such Additional Amounts as may be
specified as contemplated by Section 301. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of or any premium or interest on, or in respect of, any
Security of any series (or any payments pursuant to the Guarantee thereof) such mention shall be
deemed to include mention of the payment of Additional Amounts provided for in this Section to the
extent that, in such context, Additional Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the payment of Additional Amounts
in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
SECTION 1009. Waiver of Certain Covenants. The Company may, with respect to any
series of Securities, omit in any particular instance to comply with any term, provision or
condition which affects such series as specified pursuant to Section 301(17) for Securities of such
series, in any covenants of the Company added to Article Ten pursuant to Section 301(17) in
connection with Securities of such series, if the Holders of a majority in principal amount of all
Outstanding Securities affected by such term, provision or condition, by Act of such Holders, waive
such compliance in such instance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company and the duties of the
Trustee to Holders of Securities of such series in respect of any such term, provision or condition
shall remain in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of the Company to
redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date and of the principal amount of
Securities of such series to be redeemed and, in the case of a partial redemption, shall deliver to
the Trustee such documentation and records as shall enable the Trustee to select the Securities to
be redeemed pursuant to Section 1103. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If less than all
the Securities of any series with the same terms are to be redeemed, the particular Securities to
be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series with the same terms not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate, subject to applicable
law, and which may provide for the selection for redemption of portions of the principal of
Securities of such series; provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
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.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Except as otherwise specified as contemplated
by Section 301 for Securities of any series, notice of redemption shall be given in the manner
provided for in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed.
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Except as otherwise specified as contemplated by Section 301 for Securities of any series, all
notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price (if known) or the formula pursuant to which the Redemption
Price is to be determined if the Redemption Price cannot be determined at the time the
notice is given, together with the amount of accrued interest, if any, to the Redemption
Date,
(3) if less than all the Outstanding Securities of any 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) in case any Security is to be redeemed in part only, the notice which relates to
such Security shall state that on and after the Redemption Date, upon surrender of such
Security, the Holder will receive, without charge, a new Security or Securities of the
same series of like tenor of authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued interest, if any,
to the Redemption Date payable as provided in Section 1106 will become due and payable
upon each such Security, or the portion thereof, to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(6) the Place or Places of Payment (which in the case of Bearer Securities shall be
outside the United States) where such Securities, together in the case of Bearer
Securities with all coupons appertaining thereto, if any, maturing on or after the
Redemption Date, are to be surrendered for payment of the Redemption Price and accrued
interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities of any series,
if any, surrendered for redemption must be accompanied by all coupons maturing subsequent
to the Redemption Date or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price unless security or indemnity satisfactory to the
Company, the Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any Registered
Securities of such series are not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to redemption on such Redemption Date
pursuant to Section 305 or otherwise, the last date, as determined by the Company, on
which such exchanges may be made,
(10) the CUSIP, ISIN or other similar numbers, if any, assigned to such Securities;
provided, however, that such notice may state that no representation is made as to the
correctness of CUSIP, ISIN or other similar numbers, in which case none of
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the Company, the Trustee or any agent of the Company or the Trustee shall have any
liability in respect of the use of any CUSIP, ISIN or other similar number or numbers on
such notices, and the redemption of such Securities shall not be affected by any defect in
or omission of such numbers,
(11) the Euroclear or the Clearstream reference numbers of such Security, if any, and
(12) such other matters as the Company shall deem desirable or appropriate.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys written request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to 11:00 a.m. (New York City
time) on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, which it may not do in the case of a sinking
fund payment under Article Twelve, segregate and hold in trust as provided in Section 1003) an
amount of money in the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay on the Redemption
Date the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest, if any, on, all the Securities or portions thereof which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301 for the Securities
of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
(together with accrued interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and accrued interest, if
any) such Securities shall, if the same were interest-bearing, cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for redemption in
accordance with said notice, together with all coupons, if any, appertaining thereto maturing after
the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further that installments of
interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Regular Record Dates according to their terms and the
provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant
coupons maturing after the Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing coupon in respect of which a deduction shall have been made from
the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date at the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) set forth in or contemplated by such Security.
SECTION 1107. Securities Redeemed in Part. Any Security which is to be redeemed
only in part (pursuant to the provisions of this Article or of Article Twelve) shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or such Holders attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series and of like tenor,
of any authorized denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so surrendered.
SECTION 1108. Optional Redemption Due to Changes in Tax Treatment. Each series of
Securities may be redeemed at the option of the Company (or its successor) in whole but not in
part at any time (except in the case of Securities that have a variable rate of interest, which may
be redeemed only on an Interest Payment Date) at a Redemption Price equal to the principal amount
thereof plus accrued interest to the date fixed for redemption (except in the case of Outstanding
Original Issue Discount Securities, which may be redeemed at the Redemption Price specified by the
terms of such series of Securities) if (i) the Company is or
would, under the terms of the relevant series of Securities, be required to pay Additional
Amounts as a result of any change in or amendment to the laws or any regulations or rulings
promulgated thereunder of the United States (or in the case of a successor,
of the jurisdiction in which such successor is organized) or any political subdivision or
taxing authority thereof or therein or (ii) any change in the official application or
interpretation of such laws, regulations or rulings, or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation
to which the United States (or such other jurisdiction or political subdivision or taxing
authority) is a party, which change, execution or amendment becomes effective on or after the date
of issuance of such series pursuant to Section 301(23) (or in the case of a successor, the date on which such successor became such). Prior to the giving of notice of
redemption of such Securities pursuant to this Indenture, the Company will
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deliver to the Trustee an Officers Certificate, stating that the Company is entitled to
effect such redemption and setting forth in reasonable detail a statement of circumstances showing
that the conditions precedent to the right of the Company to redeem such Securities pursuant to
this Section have been satisfied.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. Retirements of Securities of any series
pursuant to any sinking fund shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an optional sinking fund payment. If provided for by the terms of Securities of any series, the
cash amount of any mandatory sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. Subject to
Section 1203, in lieu of making all or any part of any mandatory sinking fund payment with respect
to any Securities of a series in cash, the Company may at its option (1) deliver to the Trustee
Outstanding Securities of a series (other than any previously called for redemption) theretofore
purchased or otherwise acquired by the Company, together, in the case of any Bearer Securities of
such series, with all unmatured coupons appertaining thereto, and/or (2) receive credit for the
principal amount of Securities of such series which have been previously delivered to the Trustee
by the Company or for Securities of such series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any mandatory sinking fund payment with respect to the
Securities of the same series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption through operation of
the sinking fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less than 60 days
prior to each sinking fund payment date for any series of Securities, the Company will deliver to
the Trustee an Officers Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion
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thereof, if any, which is to be satisfied by delivering or crediting Securities of that series
pursuant to Section 1202 (which Securities will, if not previously delivered, accompany such
certificate) and whether the Company intends to exercise its right to make a permitted optional
sinking fund payment with respect to such series. Such certificate shall be irrevocable and upon
its delivery the Company shall be obligated to make the cash payment or payments therein referred
to, if any, on or before the next succeeding sinking fund payment date. In the case of the failure
of the Company to deliver such certificate, the sinking fund payment due on the next succeeding
sinking fund payment date for that series shall be paid entirely in cash and shall be sufficient to
redeem the principal amount of such Securities subject to a mandatory sinking fund payment without
the option to deliver or credit Securities as provided in Section 1202 and without the right to
make any optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay to the Trustee or a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) in cash a sum equal to the principal (and premium, if any) and any interest that will
accrue to the date fixed for redemption of Securities or portions thereof to be redeemed on such
sinking fund payment date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any series of Securities, if
at any time the amount of cash to be paid into such sinking fund on the next succeeding sinking
fund payment date, together with any unused balance of any preceding sinking fund payment or
payments for such series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of Securities of such
series through the operation of the sinking fund. Any such unused balance of moneys deposited in
such sinking fund shall be added to the sinking fund payment for such series to be made in cash on
the next succeeding sinking fund payment date or, at the request of the Company, shall be applied
at any time or from time to time to the purchase of Securities of such series, by public or private
purchase, in the open market or otherwise, at a purchase price for such Securities (excluding
accrued interest and brokerage commissions, for which the Trustee or any Paying Agent will be
reimbursed by the Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any series
before their Stated Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
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SECTION 1302. Repayment of Securities. Securities of any series subject to
repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided
in the terms of such Securities, be repaid at the Repayment Price thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment Date it will deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and
312(e)) sufficient to pay the Repayment Price of, and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest, if any, on, all the Securities or portions thereof, as the
case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject to repayment at
the option of the Holders thereof will contain an Option to Elect Repayment form on the reverse
of such Securities. To be repaid at the option of the Holder, except as otherwise specified as
contemplated by Section 301 for Securities of such series, any Security so providing for such
repayment, with the Option to Elect Repayment form on the reverse of such Security duly completed
by the Holder (or by the Holders attorney duly authorized in writing), must be received by the
Company at the Place of Payment therefor specified in the terms of such Security (or at such other
place or places of which the Company shall from time to time notify the Holders of such Securities)
not earlier than 45 days nor later than 30 days prior to the Repayment Date. If less than the
entire Repayment Price of such Security is to be repaid in accordance with the terms of such
Security, the portion of the Repayment Price of such Security to be repaid, in increments of the
minimum denomination for Securities of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of such Security surrendered that
is not to be repaid, must be specified. Any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount
of such Security would be less than the minimum authorized denomination of Securities of the series
of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of
any Security providing for repayment at the option of the Holder thereof, exercise of the repayment
option by the Holder shall be irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and Payable. If
Securities of any series providing for repayment at the option of the Holders thereof shall have
been surrendered as provided in this Article and as provided by or pursuant to the terms of such
Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become
due and payable and shall be paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company shall default in the payment of such Securities
on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities so to be repaid,
except to the extent provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if any, appertaining
thereto maturing after the Repayment Date, the Repayment Price of such Security so to be repaid
shall be paid by the Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity
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is on or prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and, unless otherwise
specified pursuant to Section 301, only upon presentation and surrender of such coupons; and
provided further that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Repayment Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the close of business on
the relevant Regular Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied by all appurtenant
coupons maturing after the Repayment Date, such Security may be paid after deducting from the
amount payable therefor as provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented by
coupons shall be payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall not be so repaid upon
surrender thereof, such principal amount (together with interest, if any, thereon accrued to such
Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth in or contemplated
by such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any Security which is to
be repaid in part only, the Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Security, without service charge and at the expense of the Company, a new
Security or Securities of the same series, and of like tenor, of any authorized denomination
specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion
of the principal of such Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Companys Option to Effect Defeasance or Covenant Defeasance. Except
as otherwise specified as contemplated by Section 301 for Securities of any series, the provisions
of this Article Fourteen shall apply to each series of Securities, and the Company may, at its
option, effect defeasance of the Securities of or within a series under Section 1402, or covenant
defeasance of or within a series under Section 1403 in accordance with the terms of such Securities
and in accordance with this Article.
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SECTION 1402. Defeasance and Discharge. Upon the Companys exercise of the above
option applicable to this Section with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to such Outstanding
Securities and any related coupons on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, defeasance). For this purpose, such defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding
Securities and any related coupons, which shall thereafter be deemed to be Outstanding only for
the purposes of Section 1405 and the other Sections of this Indenture referred to in (A) and (B)
below, and to have satisfied all its other obligations under such Securities and any related
coupons and this Indenture insofar as such Securities and any related coupons are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any related coupons to
receive, solely from the trust fund described in Section 1404 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any) and interest, if any, on
such Securities and any related coupons when such payments are due, (B) the Companys obligations
with respect to such Securities under Sections 304, 305, 306, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated by Section 1008 and such
obligations as shall be ancillary thereto, (C) the rights, powers, trusts, duties and immunities of
the Trustee hereunder including, without limitation, Section 606 and the penultimate paragraph of
Section 1405 and (D) this Article Fourteen. Subject to compliance with this Article Fourteen, the
Company may exercise its option under this Section 1402 notwithstanding the prior exercise of its
option under Section 1403 with respect to such Securities and any related coupons.
SECTION 1403. Covenant Defeasance. Upon the Companys exercise of the above option
applicable to this Section with respect to any Securities of or within a series, the Company shall
be released from its obligations under Sections 801 and 802, and, if specified pursuant to Section
301, its obligations under any other covenant, with respect to such Outstanding Securities and any
related coupons on and after the date the conditions set forth in Section 1404 are satisfied
(hereinafter, covenant defeasance), and such Securities and any related coupons shall thereafter
be deemed not to be Outstanding for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such covenants, but
shall continue to be deemed Outstanding for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities and any related
coupons, the Company may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such covenant or by reason of reference in any such
covenant to any other provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 501(5) or Section 501(10) or
otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and
such Securities and any related coupons shall be unaffected thereby.
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SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The following shall
be the conditions to application of either Section 1402 or Section 1403 to any Outstanding
Securities of or within a series and any related coupons:
(1) The Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to
comply with the provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities and any
related coupons, (A) an amount (in such Currency in which such Securities and any related
coupons are then specified as payable at Stated Maturity), or (B) Government Obligations
applicable to such Securities (determined on the basis of the Currency in which such
Securities are then specified as payable at Stated Maturity) which through the scheduled
payment of principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of principal of and
premium, if any, and interest, if any, under such Securities and any related coupons,
money in an amount, or (C) a combination thereof, 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, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest, if any, on such Outstanding Securities
and any related coupons on the Stated Maturity (or Redemption Date, if applicable) of such
principal (and premium, if any) or installment of interest, if any, and (ii) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding Securities and
any related coupons on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities and any related coupons;
provided that the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such Government Obligations to said payments with respect to such
Securities and any related coupons. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 1102, a notice of its election to redeem all or any
portion of such Outstanding Securities at a future date in accordance with the terms of
the Securities of such series and Article Eleven, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities or any related
coupons shall have occurred and be continuing on the date of such deposit or, insofar as
paragraphs (6) and (7) of Section 501 are concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a breach or violation
of, or constitute a default under, any material agreement or instrument (other than this
Indenture) to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound.
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(4) In the case of an election under Section 1402, the Company shall have delivered
to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or (y) since the date
of execution of this Indenture, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Outstanding Securities and any related coupons will not
recognize income, gain or loss for federal income tax purposes as a result of the deposit
and such defeasance and will be subject to U.S. federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if the deposit and such
defeasance had not occurred.
(5) In the case of an election under Section 1403, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding
Securities and any related coupons will not recognize income, gain or loss for federal
income tax purposes as a result of such covenant defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if the deposit and such covenant defeasance had not occurred.
(6) Notwithstanding any other provisions of this Section, such defeasance or covenant
defeasance shall be effected in compliance with any additional or substitute terms,
conditions or limitations in connection therewith pursuant to Section 301.
(7) The Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for relating to
either the defeasance under Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with.
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions. Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant to Section 301)
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the Trustee) pursuant to Section 1404 in respect
of such Outstanding Securities and any related coupons shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any related coupons and this
Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and
any related coupons of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, if any, but such money need not be segregated from other funds except to the
extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a
deposit referred to in Section 1404(1) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect pursuant to Section 312(b) or the terms
of such Security to receive payment in a Currency other than that in which the deposit pursuant to
Section 1404(1) has been made in respect of such Security, or (b) a Conversion Event occurs as
contemplated in Section 312(d) or 312(e) or by the terms of any
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Security in respect of which the deposit pursuant to Section 1404(1) has been made, the
indebtedness represented by such Security and any related coupons shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of (and premium, if
any) and interest, if any, on such Security as they become due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such election) the amount or
other property deposited in respect of such Security into the Currency in which such Security
becomes payable as a result of such election or Conversion Event based on the applicable Market
Exchange Rate for such Currency in effect on the third Business Day prior to each payment date,
except, with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at
the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or Government Obligations deposited pursuant to Section 1404 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of such Outstanding Securities and any related
coupons. Notwithstanding anything to the contrary contained herein, the foregoing sentence shall
survive the termination of this Indenture and the earlier resignation or removal of the Trustee.
Anything in this Article Fourteen to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or Government Obligations
(or other property and any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
SECTION 1406. Reinstatement. If the Trustee or any Paying Agent is unable to apply
any money in accordance with Section 1405 with respect to any Securities by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Companys obligations under this Indenture and such Securities and any
related coupons shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1402 or 1403, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1405; provided, however, that if the
Company makes any payment of principal of (or premium, if any) or interest, if any, on any such
Security or any related coupon following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities and any related coupons to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. If Securities of a series
are issuable as Bearer Securities, a meeting of Holders of Securities of such series may be called
at any time and from time to time pursuant to this Article to make, give or take any
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request, demand, authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. The Trustee may at any time call
a meeting of Holders of Securities of any series for any purpose specified in Section 1501, to be
held at such time and at such place in The City of New York or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided for in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(a) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at
least 10% in principal amount of the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of Securities of such
series in the amount above specified, as the case may be, may determine the time and the place in
The City of New York or in London for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in paragraph (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to vote at any
meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as
proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder
of Holders. The only Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Person entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any representatives of the Company
and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority in principal
amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders
of Securities of such series; provided, however, that, if any action is to be taken at such meeting
with respect to a consent or waiver which this Indenture expressly provides may be given by the
Holders of not less than a specified percentage in principal amount of the Outstanding Securities
of a series, the Persons entitled to vote such specified percentage in principal amount of the
Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum within
30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other case the meeting may
be adjourned for a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1502(a),
except that such notice need be given only once
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not less than five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of
such series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of
not less than such specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of Securities of such
series and the related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any action is to be taken at
a meeting of Holders of Securities of any series with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage in principal amount
of all Outstanding Securities affected thereby, or of the Holders of such series and one or more
additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such series that vote in
favor of such request, demand, authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.
Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders of Securities of a series in regard to proof of
the holding of Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters concerning the conduct
of the meeting as its shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in Section 104 or by
having the signature of the person executing the proxy witnessed
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or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(a) The Trustee shall, by an instrument in writing appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders of Securities as
provided in Section 1502(b), in which case the Company or the Holders of Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in principal amount of the Outstanding Securities of such
series represented at the meeting.
(b) At any meeting each Holder of a Security of such series or proxy shall be entitled to one
vote for each $1,000 principal amount of Outstanding Securities of such series held or represented
by him (determined as specified in the definition of Outstanding in Section 101);
provided, however, that no vote shall be cast or counted at any meeting in respect
of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(c) Any meeting of Holders of Securities of any series duly called pursuant to Section 1502
at which a quorum is present may be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The vote upon any
resolution submitted to any meeting of Holders of Securities of any series shall be by written
ballots on which shall be subscribed the signatures of the Holders of Securities of such series or
of their representatives by proxy and the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the
proceedings of each meeting of Holders of Securities of any series shall be prepared by the
Secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 1502 and, if applicable, Section 1504. Each copy
shall be signed and verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
83
This Indenture may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same Indenture.
84
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, as of
the day and year first above written.
HEARTWARE INTERNATIONAL, INC., as Issuer |
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By: | /s/ Jeffrey M. Held | |||
Name: | Jeffrey M. Held | |||
Title: | VP, General Counsel |
WILMINGTON TRUST FSB as Trustee |
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By: | /s/ Jane Schweiger | |||
Name: | Jane Schweiger | |||
Title: | Vice President |
EXHIBIT A
FORMS OF CERTIFICATION
A-1
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
of Securities to be delivered]
This is to certify that as of the date hereof, and except as set forth below, the
above-captioned Securities held by you for our account (i) are owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic corporations, any
estate the income of which is subject to United States federal income taxation regardless of its
source or any trust if a court within the United States is able to exercise primary supervision
over the administration of the trust and one or more United States persons have the authority to
control all substantial decisions of the trust (United States person(s)), (ii) are owned by
United States person(s) that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as financial institutions) purchasing for their own account or for resale,
or (b) United States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may advise HeartWare
International, Inc. or its agent that such financial institution will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended,
and the regulations thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United
States or foreign financial institution described in clause (iii) above (whether or not also
described in clause (i) or (ii)), this is to further certify that such financial institution has
not acquired the Securities for purposes of resale directly or indirectly to a United States person
or to a person within the United States or its possessions.
As used herein, United States means the United States of America (including the states and
the District of Columbia); and its possessions include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you
intend to submit your certification relating to the above-captioned Securities held by you for our
account in accordance with your Operating Procedures if any applicable statement herein is not
correct on such date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
A-1-1
This certificate excepts and does not relate to [U.S.$] of such interest in the
above-captioned Securities in respect of which we are not able to certify and as to which we
understand an exchange for an interest in a permanent global Security or an exchange for and
delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made
until we do so certify.
We understand that this certificate may be required in connection with certain tax legislation
in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii) the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable] |
[Name of Person Making Certification] |
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(Authorized Signatory) | ||||
Name: | ||||
Title: |
A-1-2
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
AND CLEARSTREAM IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
of Securities to be delivered]
This is to certify that based solely on written certifications that we have received in
writing, by tested telex or by electronic transmission from each of the persons appearing in our
records as persons entitled to a portion of the principal amount set forth below (our Member
Organizations) substantially in the form attached hereto, as of the date hereof, [U.S.$]
principal amount of the above-captioned Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations or any estate the
income of which is subject to United States Federal income taxation regardless of its source or any
trust if a court within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the authority to control all
substantial decisions of the trust (United States person(s)), (ii) is owned by United States
person(s) that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred
to as financial institutions) purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has agreed, on its own
behalf or through its agent, that we may advise HeartWare International, Inc. or its agent that
such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned
by United States or foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to
the further effect, that financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, United States means the United States of America (including the states and
the District of Columbia); and its possessions include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for exchange (or, if
relevant, collection of any interest) any portion of the temporary global Security representing
A-2-1
the above-captioned Securities excepted in the above-referenced certificates of Member
Organizations and (ii) as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member Organizations with
respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of
any interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax legislation
in the United States. If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
{To be dated no earlier than the Exchange Date or the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable} |
[EUROCLEAR BANK S.A./N.V.] [CLEARSTREAM] |
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By | ||||
A-2-2