Exhibit 4.2
EXECUTION COPY
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DEUTSCHE TELEKOM AG,
Issuer
TO
CITIBANK, N.A.
Trustee
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INDENTURE
Dated as of July 6, 2000
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Debt Securities
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Deutsche Telekom AG
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
ss.310(a)(1) .................................................609
(a)(2) ..................................................609
(a)(3) ..................................................Not Applicable
(a)(4) ..................................................Not Applicable
(b) ..................................................608
..................................................610
ss. 311(a) ................................................613
(b) ..................................................613
ss. 312(a) ................................................701
..................................................702
(b) ..................................................702
(c) ..................................................702
ss. 313(a) ................................................703
(b) ..................................................703
(c) ..................................................703
(d) ..................................................703
ss. 314(a) ................................................704
(a)(4) ..................................................101
..................................................1004
(b) ..................................................Not Applicable
(c)(1) ..................................................102
(c)(2) ..................................................102
(c)(3) ..................................................Not Applicable
(d) ..................................................Not Applicable
(e) ..................................................102
ss. 315(a) ................................................601
(b) ..................................................602
(c) ..................................................601
(d) ..................................................601
(e) ..................................................514
ss. 316(a) ................................................101
(a)(1)(A) ..................................................502
..................................................512
(a)(1)(B) ..................................................513
(a)(2) ..................................................Not Applicable
..................................................508
(c) ..................................................104
ss. 317(a)(1) ................................................503
(a)(2) ..................................................1003
ss. 318(a) ................................................107
__________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
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Page
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RECITALS........................................................................................1
ARTICLE ONE.....................................................................................2
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.........................................2
Section 101. Definitions.....................................................................2
Act........................................................................................2
Additional Amounts.........................................................................2
Adjusted Treasury Yield....................................................................2
Affiliate..................................................................................2
Authenticating Agent.......................................................................2
Authorized Newspaper.......................................................................2
Board of Directors.........................................................................3
Board Resolution...........................................................................3
Business Day...............................................................................3
Capital Market Indebtedness................................................................3
Commission.................................................................................3
Comparable Treasury Issue..................................................................3
Comparable Treasury Price..................................................................3
Corporate Trust Office.....................................................................3
Corporation................................................................................3
Defaulted Interest.........................................................................3
Defeasance.................................................................................4
Depositary.................................................................................4
DTC........................................................................................4
Encumbrance................................................................................4
Event of Default...........................................................................4
Exchange Act...............................................................................4
Expiration Date............................................................................4
Global Security............................................................................4
Holder.....................................................................................4
Indenture..................................................................................4
Interest...................................................................................4
Interest Payment Date......................................................................4
Investment Company Act.....................................................................4
Issuer.....................................................................................4
Maturity...................................................................................4
Officer's Certificate......................................................................4
Opinion of Counsel.........................................................................4
Order......................................................................................5
Original Issue Discount Security...........................................................5
Outstanding................................................................................5
Paying Agent...............................................................................6
_________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
Person.....................................................................................6
Place of Payment...........................................................................6
Predecessor Security.......................................................................6
Quotation Agent............................................................................6
Quotation Agent's Quotations...............................................................6
Redemption Date............................................................................6
Redemption Price...........................................................................6
Regular Record Date........................................................................6
Relevant Jurisdiction......................................................................6
Responsible Officer........................................................................6
Securities.................................................................................6
Securities Act.............................................................................6
Security Register..........................................................................6
Special Record Date........................................................................6
Stated Maturity............................................................................7
Subsidiary.................................................................................7
Trustee....................................................................................7
Trust Indenture Act........................................................................7
United States..............................................................................7
U.S. Government Obligations................................................................7
Vice President.............................................................................7
Section 102. Compliance Certificates and Opinions............................................7
Section 103. Form of Documents Delivered to Trustee..........................................8
Section 104. Acts of Holders of Securities; Record Dates.....................................8
Section 105. Notices, Etc., to Trustee and Issuer...........................................10
Section 106. Notice to Holders; Waiver......................................................10
Section 107. Language of Notices, Etc.......................................................11
Section 108. Conflict with Trust Indenture Act..............................................11
Section 109. Effect of Headings and Table of Contents.......................................11
Section 110. Successors and Assigns.........................................................11
Section 111. Separability Clause............................................................11
Section 112. Benefits of Indenture..........................................................11
Section 113. Governing Law..................................................................11
Section 114. Saturday, Sundays and Legal Holidays...........................................11
Section 115. Appointment of Agent for Service...............................................12
ARTICLE TWO....................................................................................13
SECURITY FORMS.................................................................................13
Section 201. Forms Generally................................................................13
Section 202. Form of Face of Global Security................................................14
Section 203. Form of Reverse of Security....................................................16
Section 204. Form of Legend for Global Securities...........................................22
Section 205. Form of Trustee's Certificate of Authentication................................22
________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
ARTICLE THREE..................................................................................23
THE SECURITIES.................................................................................23
Section 301. Amount Unlimited; Issuable in Series...........................................23
Section 302. Denominations..................................................................25
Section 303. Execution, Authentication, Delivery and Dating.................................25
Section 304. Temporary Securities...........................................................26
Section 305. Registration, Registration of Transfer and Exchange............................27
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...............................28
Section 307. Payment of Interest; Interest Rights Preserved.................................29
Section 308. Persons Deemed Owner...........................................................30
Section 309. Cancellation...................................................................30
Section 310. Computation of Interest........................................................30
Section 311. CUSIP Numbers..................................................................30
ARTICLE FOUR...................................................................................31
SATISFACTION AND DISCHARGE.....................................................................31
Section 401. Satisfaction and Discharge of Indenture........................................31
Section 402. Application of Trust Money.....................................................32
Section 403. Defeasance and Discharge of Securities of any Series...........................32
ARTICLE FIVE...................................................................................34
REMEDIES.......................................................................................34
Section 501. Events of Default..............................................................34
Section 502. Acceleration of Maturity; Rescission and Annulment.............................35
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee................35
Section 504. Trustee May File Proofs of Claim...............................................36
Section 505. Trustee May Enforce Claims Without Possession of Securities....................36
Section 506. Application of Money Collected.................................................36
Section 507. Limitation on Suits............................................................37
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert........................................................37
Section 509. Restoration of Rights and Remedies.............................................37
Section 510. Rights and Remedies Cumulative.................................................38
Section 511. Delay or Omission Not Waiver...................................................38
Section 512. Control by Holders.............................................................38
Section 513. Waiver of Past Defaults........................................................39
Section 514. Undertaking for Costs..........................................................39
Section 515. Waiver of Stay or Extension Laws...............................................39
ARTICLE SIX....................................................................................40
THE TRUSTEE....................................................................................40
Section 601. Certain Duties and Responsibilities............................................40
Section 602. Notice of Defaults.............................................................40
________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
Section 603. Certain Rights of Trustee......................................................40
Section 604. Not Responsible for Recitals or Issuance of Securities.........................41
Section 605. May Hold Securities............................................................41
Section 606. Money Held in Trust............................................................41
Section 607. Compensation and Reimbursement.................................................42
Section 608. Conflicting Interests..........................................................42
Section 609. Corporate Trustee Required; Eligibility........................................42
Section 610. Resignation and Removal; Appointment of Successor..............................43
Section 611. Acceptance of Appointment by Successor.........................................44
Section 612. Merger, Conversion, Consolidation or Succession to Business....................45
Section 613. Preferential Collection of Claims Against Issuer...............................45
Section 614. Appointment of Authenticating Agent............................................45
Section 615. Trustee's Application for Instructions from the Issuer.........................47
ARTICLE SEVEN..................................................................................48
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER...............................................48
Section 701. Issuer to Furnish Trustee Names and Addresses of Holders.......................48
Section 702. Preservation of Information; Communications to Holders.........................48
Section 703. Reports by Trustee.............................................................48
Section 704. Reports by Issuer..............................................................48
Section 705. Calculation of Original Issue Discount.........................................49
ARTICLE EIGHT..................................................................................50
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE...........................................50
Section 801. Issuer May Consolidate, Etc., Only on Certain Terms............................50
Section 802. Successor Substituted..........................................................51
ARTICLE NINE...................................................................................52
SUPPLEMENTAL INDENTURES........................................................................52
Section 901. Supplemental Indentures Without Consent of Holders.............................52
Section 902. Supplemental Indentures with Consent of Holders................................53
Section 903. Execution of Supplemental Indentures...........................................54
Section 904. Effect of Supplemental Indentures..............................................54
Section 905. Conformity with Trust Indenture Act............................................54
Section 906. Reference in Securities to Supplemental Indentures.............................54
ARTICLE TEN....................................................................................55
COVENANTS......................................................................................55
Section 1001. Payment of Principal, Premium and Interest....................................55
Section 1002. Maintenance of Office or Agency...............................................55
Section 1003. Money for Securities Payments to Be Held in Trust.............................55
Section 1004. Additional Amounts............................................................56
Section 1005. Statement by Officers as to Default...........................................57
Section 1006. Existence.....................................................................57
________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
Section 1007. Maintenance of Properties.....................................................58
Section 1008. Payment of Taxes and Other Claims.............................................58
Section 1009. Limitation on Liens...........................................................58
Section 1010. Waiver of Certain Covenants...................................................58
ARTICLE ELEVEN.................................................................................59
REDEMPTION OF SECURITIES.......................................................................59
Section 1101. Applicability of Article......................................................59
Section 1102. Election to Redeem; Notice to Trustee.........................................59
Section 1103. Selection by Trustee of Securities to Be Redeemed.............................59
Section 1104. Notice of Redemption..........................................................60
Section 1105. Deposit of Redemption Price...................................................60
Section 1106. Securities Payable on Redemption Date.........................................61
Section 1107. Securities Redeemed in Part...................................................61
Section 1108. Optional Redemption Due to Changes in Tax Treatment...........................61
ARTICLE TWELVE.................................................................................63
SINKING FUNDS..................................................................................63
Section 1201. Applicability of Article......................................................63
Section 1202. Satisfaction of Sinking Fund Payments with Securities.........................63
Section 1203. Redemption of Securities for Sinking Fund.....................................63
__________________
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
INDENTURE, dated as of July 6, 2000, between DEUTSCHE TELEKOM AG, a
private law stock corporation incorporated under the laws of the Federal
Republic of Germany (the "Issuer"), having its principal office at
βββββββββ�-βββββ�-βββββ� βββ�, β�-βββββ� ββββ, βββββββ�, and CITIBANK, N.A., a national
banking association duly organized and existing under the laws of the United
States of America, as Trustee hereunder (herein called the "Trustee").
RECITALS
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Issuer, 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 thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Securities, as follows:
1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles," or "GAAP," with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the Federal Republic of Germany at the
date of such computation and as applied by the Issuer; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means additional amounts payable pursuant to
Section 1004.
"Adjusted Treasury Yield" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date plus:
(i) in the case of a Security of any series maturing in less than
five years from its initial date of issuance, 15 basis points; or
(ii) in the case of a Security of any series maturing in five years
or greater from its initial date of issuance, 20 basis points.
"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 the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of 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.
2
"Board of Directors", when used with reference to the Issuer, means the
board of directors of the Issuer, or any committee of such board of the Issuer,
duly authorized to act for such board hereunder.
"Board Resolution", when used with reference to the Issuer, means a
copy of a resolution certified by any member of the Board of Directors or the
Secretary or the Assistant Secretary, or any person duly appointed by the Board
of Directors 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 in each case
delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Market Indebtedness" means any obligation for the payment of
borrowed money which is in the form of, or represented or evidenced by, a
certificate of indebtedness or in the form of, or represented or evidenced by,
bonds, notes or other securities which are, or are capable of being, quoted,
listed, dealt in or traded on a stock exchange or other recognized securities
market. For the purposes of avoiding any doubt in respect of asset-backed
financings originated by the Issuer, the expressions "assets" and "obligations
for the payment of borrowed money" as used in this definition do not include
assets and obligations of the Issuer which, pursuant to the requirements of law
and accounting principles generally accepted in the Federal Republic of Germany,
need not, and are not, reflected in the balance sheet of the Issuer.
"Commission" means the United States 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 instrument 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.
"Comparable Treasury Issue" means an obligation issued by the United
States Treasury selected by the Quotation Agent as having a maturity comparable
to the remaining term of any series of Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such series of Securities.
"Comparable Treasury Price" means, with respect to any Redemption Date,
the average of the Quotation Agent's Quotations for such Redemption Date.
"Corporate Trust Office" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at βββ� ββββ ββββββ, βββ� βββββ�, βββ� ββββ,
βββ� ββββ βββββ�, Attention: Citibank Agency & Trust Services, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Issuer, or the principal corporate trust office of any successor Trustee
(or such other address as a successor Trustee may designate from time to time by
notice to the Holders and the Issuer).
"Corporation" means a corporation, association, company (including
without limitation a limited liability company), joint-stock company or business
trust.
"Defaulted Interest" has the meaning specified in Section 307.
3
"Defeasance" has the meaning specified in Section 403.
"Depositary" means, with respect to Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301.
"DTC" means The Depository Trust Company or its nominee.
"Encumbrance" means any mortgage, pledge, security interest or lien.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the United States Securities Exchange Act of 1934
and any statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security evidencing all or part of the
Securities of any series substantially in the form set forth in Section 202
hereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means 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,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the United States Investment Company Act
of 1940 and any statute successor thereto, in each case as amended from time to
time.
"Issuer" means the Person named as "Issuer" 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 "Issuer" shall mean such
successor Person. Issuer shall also mean any new issuer of Securities under this
Indenture as contemplated by Section 901(1).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer's Certificate" means a certificate signed by any director or
the Secretary or any person duly appointed in a Board Resolution of the Issuer
and delivered to the Trustee. The officer signing an Officer's Certificate given
pursuant to Section 1005 shall be the principal executive, financial or
accounting officer of the Issuer.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer, or other counsel.
4
"Order" means a written request or order signed in the name of the
Issuer by any director or the Secretary or any person duly appointed by the
Board of Directors of the Issuer and delivered 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
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, 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 for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Issuer) in trust or set aside and segregated in trust by the
Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of such
Securities; 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 as to which Defeasance has been effected pursuant to
Section 403; and
(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 Issuer;
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, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 301 on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, (iii) if the principal
amount payable at Stated Maturity of any Security is not determinable upon
original issuance, the principal amount of such Security that shall be deemed to
be Outstanding shall be the amount as specified or determined as contemplated by
Section 301, and (iv) Securities owned by the Issuer or any other obligor upon
the Securities or any Affiliate of the Issuer or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Issuer or any other obligor upon the Securities or any
Affiliate of the Issuer or of such other obligor.
5
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or any premium or interest on any Securities on its behalf.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Quotation Agent" means a reference dealer in obligations issued by the
United States Treasury that is a primary U.S. government securities dealer in
New York City, appointed by the Trustee after consultation with the Issuer.
"Quotation Agent's Quotations" means, with respect to any Redemption
Date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by the Quotation Agent at
5:00 p.m. on the third Business Day preceding such Redemption Date.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Relevant Jurisdiction" has the meaning specified in Section 1004.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, trust officer or any
other officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the United States Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
6
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" of any Person means a corporation in respect of which more
than 50% of the outstanding voting stock or equity interest having by the terms
thereof ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether 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
or controlled by the Issuer or by one or more of its Subsidiaries.
"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, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the United States Trust Indenture Act of
1939 as in force at the date as of which this instrument was executed (except as
provided in Section 905); provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
"United States" means the United States of America (including the
States and the District of Columbia) and its possessions (including Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands).
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, 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 U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
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 U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President", when used with respect to the Issuer, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Issuer to the Trustee to take
any action under any provision of this Indenture, the Issuer shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officer's Certificate, if to be given by an officer of the Issuer, or an Opinion
of Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
7
(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 condition or covenant 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 Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, 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 such 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 or officers of the Issuer stating that the
information with respect to such factual matters is in the possession of the
Issuer, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders of Securities; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, 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 his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
8
(c) The Issuer may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Issuer may not set a record date for, and the provisions of this paragraph shall
not apply with respect to, the giving or making of any notice, declaration,
request or direction referred to in the next paragraph. If any record date is
set pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date, and no other Holders, shall be entitled to
take the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Issuer from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Issuer, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any declaration of acceleration referred to in
Section 502, (ii) any request to institute proceedings referred to in Section
507(1) or (iii) any direction referred to in Section 512, in each case with
respect to Securities of such series. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the expense of the Issuer, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Issuer in writing and to each Holder of Securities of the relevant series in the
manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party or parties hereto in
writing, and to each Holder of Securities of the relevant series in the manner
set forth in Section 106, on or prior to the existing Expiration Date.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date and, if an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party or parties hereto which set such record date shall be deemed to have
designated the 180th day after such record date as the Expiration Date with
respect thereto.
9
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
(d) The ownership of Securities shall be proved by the Security
Register.
(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 or
the Issuer in reliance thereon, whether or not notation of such action is made
upon such Security.
Section 105. Notices, Etc., to Trustee and Issuer.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided for 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 Issuer shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing (or sent
by facsimile and confirmed in writing) to or with the Trustee at its Corporate
Trust Office, Attention: Citibank Agency & Trust Services, or
(2) the Issuer by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed (or sent by facsimile and confirmed in writing) international
air mail postage prepaid and addressed to its principal office specified in the
first paragraph of this instrument to the attention of its Secretary, or at any
other address previously furnished in writing to the Trustee by the Issuer.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
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.
10
Section 107. Language of Notices, Etc.
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.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer shall bind
their respective successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 113. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
Section 114. Saturday, Sundays and Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or the last day on which Holders have the right to
convert their Securities shall not be a Business Day at any Place of Payment or
conversion, then (notwithstanding any other provision of this Indenture or of
the Securities (other than a provision of any Security which specifically states
that such provision shall apply in lieu of this Section)) payment of interest or
principal (and premium, if any) or conversion need not be made at such Place of
Payment or conversion on such date, but may be made on the next succeeding
Business Day at such Place of Payment or conversion with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity or on such last day for conversion.
11
Section 115. Appointment of Agent for Service.
By the execution and delivery of this Indenture, the Issuer hereby
appoints Deutsche Telekom Inc. as its agent upon which process may be served in
any legal action or proceeding which may be instituted in any Federal or State
court in the Borough of Manhattan, the City of New York, arising out of or
relating to the Securities or this Indenture, but for that purpose only. Service
of process upon such agent at βββ� ββββ ββββββ βββ� ββββ, βββ� ββββ βββββ�, and
written notice of said service to the Issuer by the Person servicing the same
addressed as provided by Section 105, shall be deemed in every respect effective
service of process upon the Issuer in any such legal action or proceeding, and
the Issuer hereby submits to the nonexclusive jurisdiction of any such court in
which any such legal action or proceeding is so instituted. Such appointment
shall be irrevocable so long as the Holders of Securities shall have any rights
pursuant to the terms thereof or of this Indenture until the appointment of a
successor by the Issuer with the consent of the Trustee and such successor's
acceptance of such appointment. The Issuer further agrees to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
such agent or successor.
12
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution of the Issuer 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 Depositary therefor or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof. If the form of Securities of any series
is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by any member of the Board
of Directors or the Secretary or the Assistant Secretary of the Issuer delivered
to the Trustee at or prior to the delivery of the Order contemplated by Section
303 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
13
Section 202. Form of Face of Global Security.
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
DEUTSCHE TELEKOM AG
[__%] [FLOATING RATE][NOTES] [BONDS] [DEBENTURES]
DUE _______ ___, 20___
No. ____________ CUSIP NO.
--------
DEUTSCHE TELEKOM AG, a private law stock corporation incorporated under
the laws of the Federal Republic of Germany (herein called the "Issuer", which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to _________________________, or registered
assigns, the principal sum of ______________________ on
________________________________________ [if the Security is to bear interest
prior to Maturity, insert --, and to pay interest thereon from _____________,
20___ or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually in arrears on ____________ and
____________ in each year] [annually in arrears on ______________ in each year],
commencing ___________, 20___, [if fixed rate securities, insert -- at the rate
of ____% per annum] [if floating rate securities, insert formula for determining
the interest rate], until the principal hereof is paid or made available for
payment [if applicable, insert --, provided that any principal and premium, and
any such instalment of interest, which is overdue shall bear interest at the
rate of __% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand].] The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the _______ [or _______] (whether or not a Business Day)[, as the case may be,]
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity, and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the date such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue principal
or premium which is not so paid on demand shall bear interest at the rate of
____% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on overdue interest
shall be payable on demand.] [The Trustee shall act as Paying Agent with respect
to the Securities of this series.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
14
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed manually or in facsimile.
Dated:
DEUTSCHE TELEKOM AG
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
15
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Issuer (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 6, 2000 (herein called the
"Indenture" which term shall have the meaning assigned to it in such
instrument), between the Issuer and Citibank, N.A., as Trustee (herein called
the "Trustee", which term includes any other successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Issuer, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [, limited in
aggregate principal amount to [insert currency and amount].
[If further issues are contemplated, insert -- The Issuer may from time
to time, without the consent of the Holders, create and issue further securities
having the same terms and conditions as the Securities in all respects (or in
all respects except for the issue date, the first payment of interest thereon
and/or issue price), so that such further issue shall be consolidated and form a
single series with the outstanding Securities or upon such terms as the Issuer
may determine at the time of their issue.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ___________ in any year commencing with the year ______ and ending with
the year ______ through operation of the sinking fund for this series at a
Redemption Price equal to [insert formula for determining amount] (with the
amount in excess of 100% of the principal amount being additional interest), and
(2)] at any time [if applicable, insert -- on or after __________, 20____], as a
whole or in part, at the election of the Issuer, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed [if
applicable, insert -- on or before _______________, __%, and if redeemed] during
the 12-month period beginning _____________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year ____ and ending with the year ____, through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ____________, 20___], as a whole or in part,
at the election of the Issuer, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount, with the amount in excess of 100% of the principal amount
being additional interest) set forth in the table below: If redeemed during the
12-month period beginning ______________ of the years indicated,
16
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Issuer may
not, prior to _____________, redeem any Securities of this series as
contemplated by [If applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the Issuer
(calculated in accordance with generally accepted financial practice) of less
than _____% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ____________ in each year beginning with the year ______ and
ending with the year ______ of [if applicable, insert -- not less than [insert
currency and amount] ("mandatory sinking fund") and not more than [insert
currency and amount] aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Issuer otherwise than
through [if applicable, insert -- mandatory] sinking fund payments may be
credited against subsequent [if applicable, insert -- mandatory] sinking fund
payments otherwise required to be made [if applicable, insert -- in the inverse
order in which they become due].]
[If applicable, insert -- The Securities may be redeemed at the option
of the Issuer, in whole but not in part, upon not less than 30 nor more than 60
days' notice given as provided in the Indenture, at any time at a Redemption
Price equal to the principal amount thereof plus accrued interest to the date
fixed for redemption if as a result of any change in or amendment to the laws or
any regulations or rulings promulgated thereunder of the jurisdiction (or of any
political subdivision or taxing authority thereof or therein) in which the
Issuer is incorporated (or in the case of a successor Person to the Issuer, of
the jurisdiction in which such successor Person is organized or any political
subdivision or taxing authority thereof or therein) or 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 such
jurisdiction or such political subdivision or taxing authority (or such other
jurisdiction or political subdivision or taxing authority) is a party, which
change, execution or amendment becomes effective on or after ____________ (or,
in the case of a successor Person to the Issuer, the date on which such
successor Person became such pursuant to the applicable provision of the
Indenture), the Issuer (or such successor Person) is or would be required to pay
Additional Amounts with respect to the Securities on the next succeeding
Interest Payment Date as set forth below and the payment of such Additional
Amounts cannot be avoided by the use of any reasonable measures available to the
Issuer.]
17
[If applicable, insert -- The Securities may also be redeemed in whole
but not in part upon not less than 30 nor more than 60 days' notice given as
provided in the Indenture at any time at a Redemption Price equal to the
principal amount thereof plus accrued interest to the date fixed for redemption
if the Person formed by a consolidation of the Issuer or into which the Issuer
is merged or to which the Issuer conveys, transfers or leases its properties and
assets substantially as an entirety is required to pay a Holder additional
amounts in respect of any tax, assessment or governmental charge imposed on any
such Holder or required to be withheld or deducted from any payment to such
Holder as a consequence of such consolidation, merger, conveyance, transfer or
lease.]
[If applicable, insert -- the Redemption Price of the Securities shall
be equal to the applicable percentage of the principal amount at Stated Maturity
set forth below:
If Redemption During the
12-Month Period Commencing Redemption Price
-------------------------- ----------------
together with, in each case (except if the Redemption Date shall be a
_____________), an amount equal to the applicable Redemption Price multiplied by
a fraction the numerator of which is the number of days from but not including
the preceding ________________ to and including the Redemption Date multiplied
by the difference between the Redemption Price applicable during the 12 months
beginning on the _________________ following the Redemption Date (or, in the
case of a Redemption Date after ________________, 100%) and the Redemption Price
applicable on the Redemption Date and the denominator of which is the total
number of days from but not including the _________________ preceding the
Redemption Date to and including the next succeeding _____________. The Issuer
will also pay to each eligible Holder, or make available for payment to each
such Holder, on the Redemption Date any additional interest (as set forth [on
the face hereof]) resulting from the payment of such Redemption Price.]
[If applicable insert -- The Redemption Price of the Securities either
in the event of certain changes in the tax treatment or in an event of default
would include, in addition to the face amount of the Security, an amount equal
to the Original Issue Discount accrued since the issue date. Original Issue
Discount (the difference between the Issue Price and the Principal Amount at
Maturity of the Security), in the period during which a Security remains
outstanding, shall accrue at ___% per annum, on a semi-annual bond equivalent
basis using a 360-day year composed of twelve 30-day months, commencing on the
Issue Date of this Security.]
[If applicable insert -- Notice of redemption will be given by mail to
Holders of Securities, not less than 30 nor more than 60 days prior to the date
fixed for redemption, all as provided in the Indenture.]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of the entire indebtedness on this Security upon
compliance by the Issuer with certain conditions set forth thereon, which
provisions apply to this Security.]
18
[If applicable, insert -- Subject to and upon compliance with the
provisions of the Indenture, the Holder of this Security is entitled, at his
option, at any time after _________________, to convert this Security into
[Describe Securities and conversion mechanics].]
[If applicable, insert -- In the event of conversion of this Security
in part only, a new Security or Securities of this series and of like tenor for
the unconverted portion hereof will be issued in the name of the Holder hereof
upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the applicable Issuer's obligations in respect of the
payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
[If any deduction or withholding for any present or future taxes or
other governmental charges of the Relevant Jurisdiction shall at any time be
required by the Relevant Jurisdiction in respect of any amounts to be paid by
the Issuer under the Securities, the Issuer will pay to the Holder of this
Security, such additional amounts as may be necessary in order that the net
amounts paid to such Holder of such Security shall be not less than the amounts
specified in such Security to which such Holder is entitled; provided, however,
that the Issuer shall not be required to make any payment of additional amounts
for or on account of:
(1) any tax or other governmental charge which would not have
been imposed but for the existence of any present or former connection
between such Holder and the Relevant Jurisdiction (other than the mere
holding of a Security and the receipt of payments thereon), including,
without limitation, such Holder being or having been a citizen or
resident thereof or being or having been present or engaged in trade or
business therein or having or having had a permanent establishment
therein;
(2) any tax or other governmental charge which would not have
been imposed but for the status of such Holder as an individual
resident of a member state of the European Union;
(3) any tax or other governmental charge that would not have
been imposed but for a failure to comply with any applicable
certification, information, identification, documentation or other
reporting requirements concerning the nationality, residence, identity
or connection with the Relevant Jurisdiction if such compliance is
required as a precondition to relief or exemption from such tax or
other governmental charge (including without limitation a certification
that such Holder is not resident in the Relevant Jurisdiction);
(4) any tax or other governmental charge which would not have
been imposed but for a change in law that becomes effective more than
30 days after a payment by the Issuer under the Securities becomes due
and payable, or is duly provided for and notice thereof is duly
published, whichever occurs later;
(5) any tax or other governmental charge required to be
withheld by any Paying Agent from a payment on a Security, if such
payment can be made without such deduction or withholding by any other
Paying Agent; or
19
(6) any combination of items (1), (2), (3), (4) and (5) above.
The foregoing provisions shall apply mutatis mutandis to any
withholding or deduction for or on account of any present or future taxes or
governmental charges of whatever nature of any jurisdiction in which any
successor Person to the Issuer is organized, or any political subdivision or
taxing authority thereof or therein. As used in (1), (2) and (3) above,
references to Holder shall include a fiduciary, settler, beneficiary, member or
shareholder of, or possessor of a power over, such Holder, if such Holder is an
estate, trust, partnership or corporation.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Issuer and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture, this Security or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to the Securities
of this series, the Holders of not less than 25% in principal amount of the
Outstanding Securities of this series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal of the Outstanding Securities of this series a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that such limitations do not apply
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal [(and premium, if any)] or [any] interest on this Security on or after
the respective due dates expressed herein [If applicable insert -- or to a suit
instituted by the Holder hereof for the enforcement of the right to convert this
Security in accordance with the Indenture]
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed or to convert this Security as provided in the Indenture.
The Securities of this series are issuable only in registered form
without coupons in denominations of [insert currency and amount] and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same. As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.]
20
[No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.]
Prior to due presentment of this Security for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
21
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
Citibank, N.A.
As Trustee
By:
-----------------------
Authorized Signatory
22
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 or pursuant to a Board Resolution of the Issuer or pursuant to
other appropriate corporate authorization, and, subject to Section 303, set
forth, or determined in the manner provided, in an Officer's Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) any stock exchange on which the Securities of the series
will be listed;
(4) the Person to whom any interest on a 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;
(5) the date or dates on which the principal of the Securities
of the series is payable;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any interest payable
on any Interest Payment Date;
(7) the place or places where, subject to the provisions of
Section 1002, the principal of and any premium and interest on
Securities of the series shall be payable, Securities of the series may
be surrendered for exchange or conversion and notices and demands to or
upon the Issuer in respect of the Securities of the series and this
Indenture may be served;
(8) other than with respect to any redemption of Securities
pursuant to Section 1108, the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of
the Issuer (including the period following the date referred to in
Section 1108) and, if other than by a Board Resolution, the manner in
which any election by the Issuer to redeem the Securities shall be
evidenced;
(9) other than with respect to any redemption of Securities
pursuant to Section 1108, the obligation, if any, of the Issuer to
redeem or purchase any Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
23
(10) the terms and conditions for conversion or exchange of
Securities into preference shares of the Issuer (including, if
applicable, the rights, preferences and privileges of such preference
shares) or ordinary shares of the Issuer, and the terms of any
additional redemption rights of the Issuer relating to such terms and
conditions for conversion or exchange, whether any such preference
shares or ordinary shares may be evidenced by American Depositary
Receipts;
(11) the denominations in which any Securities of the series
shall be issuable if other than denominations of $1,000 and any
integral multiple thereof;
(12) the currency, currencies, composite currency, composite
currencies or currency units in which payment of the principal of and
any premium and interest on any Securities of the series shall be
payable if other than the currency of the United States of America and
the manner of determining the equivalent thereof in the currency of the
United States of America for purposes of the definition of
"Outstanding" in Section 101;
(13) if the amount of principal of or any premium or interest
on any Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined;
(14) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Issuer or a Holder thereof, in one or more currencies, currency units,
composite currency or composite currency units other than that or those
in which the Securities are stated to be payable, the currency,
currencies or currency units in which the principal of and any premium
and interest on Securities of such series as to which such election is
made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount shall be determined);
(15) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(16) the application, if any, of Section 403 to the Securities
of the series;
(17) if Additional Amounts will not be payable by the Issuer;
(18) if the Issuer may from time to time without the consent
of the Holders create and issue further securities having the same
terms and conditions as the Securities in all respects (or in all
respects except for the issue date, the first payment of interest
thereon and/or issue price), so that such further issue shall be
consolidated and form a single series with the outstanding Securities
of any series or upon such terms as the Issuer may determine at the
time of their issue;
(19) if the Securities of the series are redeemable at the
option of the Issuer, whether the adjusted treasury yield is different
from the Adjusted Treasury Yield as defined and determined herein;
24
(20) if the principal amount payable at the Stated Maturity of
any Securities of the series is not determinable upon original issuance
thereof, the amount which shall be deemed to be the principal amount of
such Securities for any other purpose hereunder, including the
principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date (or, in any such case, the manner in which
such principal amount shall be determined);
(21) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set
forth in Section 204 and, if different from those set forth in Clause
(2) of the last paragraph of Section 305, any circumstances in which
Securities issued upon any exchange may be registered in the name or
names of Persons other than the Depositary for such Global Security or
a nominee thereof;
(22) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
(23) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination, and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and (subject to Section 303)
set forth, or determined in the manner provided, in the Officer's Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Issuer, a copy of an appropriate record of
such action shall be certified by any director, the Secretary or any person
appointed by the Board of Directors of the Issuer, as the case may be, each
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series shall be issuable in denominations
of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Issuer by two
authorized representatives. The signature of any such authorized representative
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the authorized representatives of the Issuer shall bind the
Issuer 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.
25
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities of any series executed by the
Issuer to the Trustee for authentication, together with an Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Order shall authenticate and deliver such Securities.
If the forms or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall receive, and (subject to Section 601) shall be fully protected
in relying upon, an Opinion of Counsel and Officers' Certificate stating,
(a) that such forms or terms have been established in
conformity with the provisions of this Indenture; and
(b) that such Securities, when authenticated and delivered by
the Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Issuer enforceable in accordance
with their terms, subject to such exceptions as such counsel shall
specify.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised in writing by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith shall determine that such action would expose the Trustee to
personal liability based upon the advice of counsel.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 301 or the Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the time of
authentication of each Security of such series if such documents (with
appropriate modifications) are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued and
reasonably contemplate the subsequent issuance of such Securities of such
series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Issuer, and the Issuer shall deliver such
Security to the Trustee for cancellation as provided in Section 309, 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
Issuer may execute, and upon 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 and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
26
If temporary Securities of any series are issued, the Issuer will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Issuer 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, the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor. 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 and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Issuer shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Issuer in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the Issuer
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like tenor and aggregate principal amount upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Issuer or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer 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 Issuer 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 or 1107 not involving any transfer.
The Issuer 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
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing or (ii) to register the
transfer of or exchange any Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
27
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of this
Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Issuer that it is unwilling or unable
to continue as Depositary for such Global Security or (ii) has ceased
to be a clearing agency registered under the Exchange Act, (B) there
shall have occurred and be continuing an Event of Default with respect
to such Global Security or (C) there shall exist such other
circumstances, if any, as have been specified for this purpose as
contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration or transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section,
Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Issuer
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.
If there shall be delivered to the Issuer and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security 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
Issuer or the Trustee that such Security has been acquired by a bona fide
purchaser, the Issuer shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer
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 issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuer, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
28
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.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any 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 that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest and, at the option of the Issuer, may be paid by check mailed
to the address of the Person as it appears in the Security Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") 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 may be paid by the Issuer, at its election in each case,
as provided in Clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted
Interest to the Persons in whose names the 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
Issuer shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Issuer shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
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 which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Issuer of such Special Record
Date and, in the name and at the expense of the Issuer, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given to each Holder of Securities
of such series the Issuer in the manner set forth 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 mailed, such Defaulted Interest shall be paid
to the Persons in whose names the 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).
(2) The Issuer may make payment of any Defaulted Interest on
the 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 Issuer to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
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.
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Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Issuer, the Trustee nor any agent of the Issuer or the Trustee shall be affected
by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Issuer may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Issuer 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 Issuer has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. 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 canceled
Securities held by the Trustee shall be disposed of in its customary manner or
as directed by an Order.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Issuer in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Issuer shall promptly notify
the Trustee of any change in the "CUSIP" numbers.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Order of the Issuer cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange or conversion of Securities herein expressly provided for, and any
right to receive Additional Amounts) with respect to the Issuer and the Trustee,
at the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities of the Issuer theretofore
authenticated and delivered (other than (i) Securities which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, and (ii)
Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from
such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) all such Securities and 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) 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 Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose money in an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest 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 Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(3) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 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 shall survive such satisfaction and discharge.
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Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust
(without liability for interest or investment) and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Issuer acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and any premium and interest for whose payment such money has been
deposited with or received by the Trustee or to make mandatory sinking fund
payments or analogous payments as contemplated by Section 403.
Section 403. Defeasance and Discharge of Securities of any Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Securities of any series, then notwithstanding Section 401, the
Issuer shall be deemed to have paid and discharged the entire indebtedness on
all the Outstanding Securities of that series, the provisions of this Indenture
as it relates to such Outstanding Securities (except as to the rights of Holders
of Securities to receive, from the trust funds described in subparagraph (1)
below, payment of the principal of (and premium, if any) and any instalment of
principal of (and premium, if any) or interest on such Securities on the Stated
Maturity of such principal or instalment of principal of (and premium, if any)
or interest on or any mandatory sinking fund payments or analogous payments
applicable to the Securities of that series on the day on which such payments
are due and payable in accordance with the terms of this Indenture and of such
Securities, any rights of Holders of Securities to convert such Securities, the
Issuer's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, and the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the provisions of Section 402 and this Section 403) shall
no longer be in effect ("Defeasance"), and the Trustee, at the expense of the
Issuer, shall, upon the Order of the Issuer, execute proper instruments
acknowledging the same, provided that the following conditions have been
satisfied:
(1) the Issuer has deposited or caused to be deposited with
the Trustee (or another trustee satisfying the requirements of Section
609), irrevocably (irrespective of whether the conditions in
subparagraphs (2), (3), (4), (5) and (6) below have been satisfied, but
subject to the provisions of Section 402 and the last paragraph of
Section 1003), as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
the Securities of that series with reference to this Section 403, in
the case of a series of Securities denominated in United States
dollars, United States money or U.S. Government Obligations, in an
amount which, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide not later than the
opening of business on the due date of any payment referred to in
clause (A) or (B) of this subparagraph (1) money in an amount, or a
combination thereof, sufficient, in the opinion of an internationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge (A) the principal of (and premium, if any) and interest on
such Outstanding Securities on the Stated Maturity of such principal or
instalment of principal or interest and (B) any mandatory sinking fund
payments or analogous payments applicable to Securities of such series
on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities;
(2) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Issuer is a party or by which either is bound;
(3) no Event of Default or event which, with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Securities of that series shall have occurred and be
continuing on the date of such deposit and no Event of Default under
Section 501(6) or Section 501(7) or event which, with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 501(6) or Section 501(7) shall have occurred and be
continuing on the 91st day after such date;
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(4) the Issuer has delivered to the Trustee an Opinion of
Counsel that there has been a change in the United States Federal
income tax law to the effect that, or the Issuer has received from, or
there has been published by, the United States Internal Revenue
Service, a ruling to the effect that, Holders of the Securities of that
series will not recognize income, gain or loss for United States
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to United States Federal income tax on
the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not
occurred;
(5) if the Securities of that series are then listed on the
New York Stock Exchange, Inc., the Issuer shall have delivered to the
Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause such Securities to be delisted;
and
(6) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance and discharge of the
entire indebtedness on all Outstanding Securities of any such series as
contemplated by this Section have been complied with.
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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 of the Issuer, means any one of the following events with respect to
the Issuer (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) the Issuer fails to pay principal or interest upon any
Security within 30 days from the relevant due date; or
(2) the Issuer fails duly to perform any other obligation
arising from any Security which failure is not capable of remedy or, if
such failure is capable of remedy, such failure continues for more than
60 days after the Trustee has received notice thereof from a Holder; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series or beyond any
period of grace provided with respect thereto; or
(4) (i) any Capital Market Indebtedness of the Issuer becomes
prematurely repayable as a result of a default in respect of the terms
thereof; or
(ii) the Issuer fails to fulfill any payment
obligation in excess of euro 25,000,000 or the equivalent
thereof under any Capital Market Indebtedness or under any
guarantee or suretyship given for any Capital Market
Indebtedness of any other Person within 30 days from its due
date or, in the case of a guarantee or suretyship, within 30
days after the guarantee or suretyship has been invoked,
unless the Issuer shall contest in good faith that such
payment obligation exists or is due or that such guarantee or
suretyship has been validly invoked; or
(iii) if a security granted in respect of any Capital
Market Indebtedness or any guarantee or suretyship therefor is
enforced on behalf of or by the creditor(s) entitled thereto;
or
(5) the Issuer announces its inability to meet its financial
obligations or ceases its payments; or
(6) a court opens insolvency proceedings against the Issuer,
or the Issuer applies for or institutes such proceedings or offers or
makes an arrangement for the benefit of its creditors generally; or
(7) the Issuer goes into liquidation unless this is done in
connection with a merger, or other form of combination with another
company and such company assumes all obligations contracted by the
Issuer in connection with this issue; or
(8) any governmental order, decree or enactment shall be made
in or by the Federal Republic of Germany whereby the Issuer is
prevented from observing and performing in full its obligations as set
forth in this Indenture, and this situation is not cured within 90
days; or
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(9) any other Event of Default established as contemplated by
Section 301 with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series of the
Issuer 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 such series of the Issuer may declare the principal
amount (or, if any of the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of such series of the
Issuer to be due and payable immediately, by a notice in writing to the Issuer
(and to the Trustee if given by Holders), specifying and upon any such
declaration such principal amount (or specified amount) shall become immediately
due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series 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, by written notice to the Issuer and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuer covenants that if
(1) default is made in the payment of any interest or payment
of any additional interest, on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof (and, if so
provided in the applicable Officer's Certificate, in the case of
technical or administrative difficulties only if the delay persists for
a period of five days),
35
the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and all amounts due the Trustee under
Section 607.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or 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 any judicial proceeding relative to the Issuer or any other
obligor upon the Securities of a series or the property of the Issuer or of such
other obligor or their creditors, the Trustee shall be entitled and empowered,
by intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder 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 reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture 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 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; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
36
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal
of and any premium and interest on the Securities 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 for principal and any premium and interest, respectively; and
THIRD: To the payment of the balance, if any, to the Issuer.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture
or the Securities or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(2) such Holder or Holders have offered to the Trustee
reasonable indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(3) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(4) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of 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 of
such Holders, 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 benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and, if
such Security is convertible, to convert such Security in accordance with this
Indenture and to institute suit for the enforcement of such right to convert and
such rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder 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 Issuer, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders 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 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, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, 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, and
(3) the Trustee need not follow any such direction if doing so
would in its reasonable discretion either involve it in personal
liability or be unduly prejudicial to Holders not joining in such
direction; provided, further, that the Trustee shall have no obligation
to make any determination with respect to any such conflict, personal
liability or undue prejudice.
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Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series of the Issuer and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series of the Issuer,
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected, or
(3) in the conversion of any Security of such series.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess reasonable
costs (including legal fees and expenses) against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Issuer, 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 of any series of
the Issuer, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or any premium or interest on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date) or for the enforcement of
any right to convert such Security pursuant to this Indenture.
Section 515. Waiver of Stay or Extension Laws.
The Issuer 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 usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Issuer (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.
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ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act and as specifically set forth in this Indenture.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers. 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.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to such Securities, no such notice to such Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) 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 (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties, whether such paper or
document be delivered in original or by facsimile;
(b) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Order and any resolution of the
Board of Directors of the Issuer may be sufficiently evidenced by a
Board Resolution;
(c) 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, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
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(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer with reasonable prior notice,
personally or by agent or attorney at the reasonable expense of the
Issuer and shall incur no liability of any kind by reason of such
inquiry or investigation, provided that the Trustee shall not be
entitled to such information which the Issuer is prevented from
disclosing as a matter of law or contract;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be within the
discretion, rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer, and 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. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Issuer of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Issuer, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Issuer with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. 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 or investment of any money received by it
hereunder except as otherwise agreed with and for the exclusive benefit of the
Issuer.
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Section 607. Compensation and Reimbursement.
The Issuer agrees:
(1) to pay to the Trustee from time to time such compensation
as shall be agreed upon in writing from time to time 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 expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except to
the extent that any such expense, disbursement or advance shall have
been caused by its negligence or willful misconduct; and
(3) to fully indemnify the Trustee and any predecessor Trustee
and their agents for, and to hold it harmless against, any and all
loss, liability, damages, claims or expense arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder and the performance of its duties hereunder, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent that any such loss, liability or
expense may be attributable to its negligence or willful misconduct.
The Trustee shall have a lien prior to the Holders to payment of
amounts due it under this Section 607 from funds held by the Trustee hereunder.
"Trustee" for purposes hereof includes any predecessor trustee, but the
negligence or bad faith of any trustee shall not affect the rights of any other
trustee hereunder.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. For this purpose
the Trustee shall not be deemed to have a conflicting interest by reason of
being Trustee for the Securities of any series and Trustee for the Securities of
any other series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to the
Securities of each series of the Issuer which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least U.S.$50,000,000 and its Corporate Trust Office in the
Borough of Manhattan, The City of New York, New York. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such Person 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 with respect to the Securities of any series 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.
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Section 610. Resignation and Removal; Appointment of Successor.
(a) 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 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Issuer. If the
instrument of acceptance by a successor Trustee required by Section 611 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 reasonable
expense of the Issuer any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
(c) 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 Issuer. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
its removal, the removed Trustee may petition at the reasonable expense of the
Issuer any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Issuer or by 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 609
and shall fail to resign after written request therefor by the Issuer
or by any such Holder, 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 Issuer by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, 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.
(e) 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 Issuer, 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) and shall comply with the
applicable requirements of Section 611. 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 Issuer and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Issuer. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Issuer or the Holders of Securities of such series and
accepted appointment in the manner required by Section 611, 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.
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(f) The Issuer shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided 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.
Section 611. Acceptance of Appointment by Successor.
(a) 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 Issuer and to 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 request
of the Issuer 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.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series of the Issuer, the
Issuer, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series of the Issuer 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 Issuer 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.
(c) Upon request of any such successor Trustee, the Issuer shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) and (b) of this Section, as the case may be.
(d) 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.
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Section 612. 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 shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Issuer.
If and when the Trustee shall be or become a creditor of the Issuer (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act, but only to the extent
therein specified, regarding the collection of claims against the Issuer (or any
such other obligor). For purposes of Section 311(b)(4) and (6) of such Act, the
following terms shall mean:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, ββββ of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Issuer for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Issuer arising from the making, drawing,
negotiating or incurring of the draft, ββββ of exchange, acceptance or
obligation.
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial conversion or
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Issuer 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 U.S.$50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to 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 Issuer. 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 Issuer. 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 Issuer and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. 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 agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
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 Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Citibank, N.A.
As Trustee
By____________________
As Authenticating Agent
By____________________
Authorized Signatory
Dated:______________
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the Issuer
wishes to have Securities of such series authenticated upon original issuance,
the Trustee, if so requested by the Issuer in writing (which writing need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel),
shall appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by such Issuer with respect of such
series of Securities.
Section 615. Trustee's Application for Instructions from the Issuer.
Any application by the Trustee for written instructions from the Issuer
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Issuer actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 701. Issuer to Furnish Trustee Names and Addresses of Holders.
The Issuer will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular
Record Date in each year, a list, in such form as the Trustee may
reasonably require, containing all the information in the possession or
control of the Issuer or any of the Issuer's Paying Agents other than
the Trustee, as to the names and addresses of the Holders as of such
Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of any of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) On or about each July 15, beginning July 15, 2001, the Trustee
shall transmit to Holders such reports, if any, dated as of the preceding May
15, concerning the Trustee and its actions under this Indenture as may be
required pursuant to Section 313(a) of the Trust Indenture Act in the manner
provided pursuant to Section 313(c) thereof. The Trustee shall also transmit to
Holders such reports, if any, as may be required pursuant to Section 313(b) of
the Trust Indenture Act at the times and in the manner provided pursuant thereto
and to Section 313(c) thereof.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Issuer. The Issuer will
notify the Trustee reasonably promptly when any Securities are listed on any
stock exchange or delisted therefrom.
Section 704. Reports by Issuer.
The Issuer shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, including financial
information and statements and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
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Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
Section 705. Calculation of Original Issue Discount.
The Issuer shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Issuer May Consolidate, Etc., Only on Certain Terms.
The Issuer may consolidate with or merge (which term shall include for
the avoidance of doubt a scheme of arrangement) into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and the Issuer may permit any Person to consolidate with or merge into
the Issuer or convey, transfer or lease its properties and assets substantially
as an entirety to the Issuer, provided that:
(1) if the Issuer shall consolidate with or merge into
another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Issuer is
merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Issuer
substantially as an entirety shall be a corporation,
partnership or trust, shall be organized and validly existing,
under the laws of the jurisdiction of its organization and
shall expressly assume, by an indenture supplemental hereto
executed and delivered to the Trustee in form reasonably
satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest (including all
Additional Amounts and any additional amounts payable pursuant
to subsection (3) below) on all the Securities and the
performance or observance of every covenant of this Indenture
on the part of the Issuer to be performed or observed;
(2) immediately after giving effect to such
transaction and treating any indebtedness which becomes an
obligation of the Issuer as a result of such transaction as
having been incurred by the Issuer at the time of such
transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing;
(3) the Person formed by such consolidation or into
which the Issuer is merged or to whom the Issuer has conveyed,
transferred or leased its properties or assets (if such Person
is organized and validly existing under the laws of a
jurisdiction other than the United States, any State thereof,
or the District of Columbia) agrees to indemnify the Holder of
each Security against (a) any tax, assessment or governmental
charge imposed on any such Holder or required to be withheld
or deducted from any payment to such Holder as a consequence
of such consolidation, merger, conveyance, transfer or lease;
and (b) any costs or expenses of the act of such
consolidation, merger, conveyance, transfer or lease; and
(4) the Issuer has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
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Section 802. Successor Substituted.
Upon any consolidation of the Issuer with, or merger of the Issuer
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Issuer substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Issuer
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such successor Person had
been named as the Issuer herein, as the case may be, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Issuer, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Issuer and the assumption by any such successor of the
covenants of the Issuer herein and in the Securities or to add
another Issuer to this Indenture for future issuances; or
(2) to add to the covenants of the Issuer for the
benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are
expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Issuer; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and
if such additional Events of Default are to be for the benefit
of less than all series of Securities, stating that such
additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series
of Securities, provided that any such addition, change or
elimination (i) shall neither (A) apply to any Security of any
series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with
respect to such provision or (ii) shall become effective only
when there is no such Security Outstanding; or
(6) to secure the Securities pursuant to Section 1009;
or
(7) to establish the form or terms of Securities of
any series thereof, each as permitted by Sections 201 and 301;
or
(8) 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 611(b); or
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(9) to reduce the conversion price of the Securities
of any series other than pursuant to this Indenture; or
(10) 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
that such action pursuant to this clause (10) shall not
adversely affect the interests of the Holders of Securities of
any series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Issuer and the
Trustee, the Issuer, when authorized by a Board Resolution or other appropriate
corporate authorization, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of such
series under this 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
any instalment of principal of or interest on, any Security,
or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
change any obligation of the Issuer to pay Additional Amounts
(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 that would be due and payable
upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or
modify or affect in any manner adverse to the interests of the
Holders of Securities of any series the conversion rights of
such Securities, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after
the Redemption Date) or of any such right of conversion, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1011, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby,
provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in
this Section and Section 1010, or the deletion of this
proviso, in accordance with the requirements of Sections
611(b) and 901(9).
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A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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 be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby, except as otherwise expressed therein.
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 in effect at the time
of the execution thereof.
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 approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Issuer shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any such supplemental indenture may be
prepared and executed by the Issuer and such securities may be authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
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ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Issuer covenants and agrees for the benefit of each series of
Securities 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 and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Issuer will maintain in each Place of Payment for any series an
office or agency where Securities of that series may be presented or surrendered
for payment, where Securities of that series may be surrendered for registration
of transfer, exchange or conversion and where notices and demands to or upon the
Issuer in respect of the Securities of that series and this Indenture may be
served.
The Issuer will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Issuer 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 and the Issuer hereby appoints the same as its agent to
receive all such presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Issuer of its obligation to maintain an office
or agency in each place of payment for Securities of any series for such
purposes. The Issuer 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.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Issuer shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest 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 of its action or failure so to
act.
Whenever the Issuer shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Issuer will promptly notify the Trustee of its action or failure so to act.
The Issuer 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 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 Issuer (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the 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 of that series.
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The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Order direct any Paying Agent to pay, to the Trustee all sums held in trust
by the Issuer or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Issuer 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 money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Issuer on its Order, or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Issuer 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 Issuer.
Section 1004. Additional Amounts.
Unless otherwise specified in any Board Resolution or other appropriate
corporate authorization of the Issuer establishing the terms of Securities of a
series in accordance with Section 301, if any deduction or withholding for any
present or future taxes or other governmental charges of the jurisdiction (or
any political subdivision or taxing authority thereof or therein) in which the
Issuer is incorporated, shall at any time be required by such jurisdiction (or
any such political subdivision or taxing authority) (each a "Relevant
Jurisdiction" ) in respect of any amounts to be paid by the Issuer of principal
of or interest on a Security of any series, the Issuer will pay to the Holder of
a Security of such series such additional amounts as may be necessary in order
that the net amounts paid to such Holder of such Security shall be not less than
the amounts specified in such Security to which such Holder is entitled;
provided, however, that the Issuer shall not be required to make any payment of
additional amounts for or on account of: (a) any tax or other governmental
charge which would not have been imposed but for the existence of any present or
former connection between such Holder and the Relevant Jurisdiction (other than
the mere holding of a Security and the receipt of payments thereon), including,
without limitation, such Holder being or having been a citizen or resident
thereof or being or having been present or engaged in trade or business therein
or having or having had a permanent establishment therein; (b) any tax or other
governmental charge which would not have been imposed but for the status of such
Holder as an individual resident of a member state of the European Union; (c)
any tax or other governmental charge that would not have been imposed but for a
failure to comply with any applicable certification, information,
identification, documentation or other reporting requirements concerning the
nationality, residence, identity or connection with the Relevant Jurisdiction if
such compliance is required as a precondition to relief or exemption from such
tax, assessment or other governmental charge (including without limitation a
certification that such Holder is not resident in the Relevant Jurisdiction);
(d) any tax or other governmental charge which would not have been imposed but
for a change in law that becomes effective more than 30 days after a payment by
the Issuer on a Security of any series becomes due and payable, or is duly
provided for and notice thereof is duly published, whichever occurs later; (e)
any tax or other governmental charge required to be withheld by any Paying Agent
from a payment on a Security, if such payment can be made without such deduction
or withholding by any other Paying Agent; or (f) any combination of items (a),
(b), (c), (d) and (e) above. The foregoing provisions shall apply mutandis
mutandis to any withholding or deduction for or on account of any present or
future taxes, assessments or governmental charges of whatever nature of any
jurisdiction in which any successor Person to the Issuer is organized, or any
political subdivision or taxing authority thereof or therein; provided, however,
that such payment of additional amounts may be subject to such further
exceptions as may be established in the terms of such Securities established as
contemplated by Section 301. As used in (a), (b) and (c) above, references to
Holder shall include a fiduciary, settler, beneficiary, member or shareholder
of, or possessor of a power over, such Holder, if such Holder is an estate,
trust, partnership or corporation. Subject to the foregoing provisions, 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 the net proceeds received on the sale or exchange of any Security
of any series, such mention shall be deemed to include mention of the payment of
additional amounts provided 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 (if applicable) in any provisions hereof shall not be
construed as excluding additional amounts in those provisions hereof where such
express mention is not made.
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If the terms of the Securities of a series established as contemplated
by Section 301 do not specify that additional amounts pursuant to the Section
will not be payable by the Issuer, at least 10 days prior to the first Interest
Payment Date with respect to that series of Securities (or if the Securities of
that series will not bear interest prior to Maturity, the first day on which a
payment of principal and any premium is made), and at least 10 days prior to
each date of payment of principal and any premium or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officer's Certificate, the Issuer will furnish the Trustee and the Issuer's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officer's Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of that series. If any such
withholding shall be required, then such Officer's Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities and the Issuer will pay to the Trustee or such Paying
Agent or Paying Agents the additional amounts required by this Section. The
Issuer covenants to indemnify each of the Trustee and any Paying Agent for, and
to hold each of them harmless against, any loss, liability or expense arising
out of or in connection with actions taken or omitted by any of them in reliance
on any Officer's Certificate furnished pursuant to this Section, except to the
extent that any such loss, liability or expense is due to its own negligence or
bad faith.
Section 1005. Statement by Officers as to Default.
The Issuer of Outstanding Securities will deliver to the Trustee,
within 120 days after the end of each fiscal year of the Issuer ending after the
date hereof, an Officer's Certificate, stating whether or not to the best
knowledge of the signers thereof the Issuer 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 Issuer shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
The Issuer shall deliver to the Trustee, as soon as possible and in any
event within ten days after the Issuer becomes aware of the occurrence of any
Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default and the action which the Issuer
proposes to take with respect thereto.
Section 1006. Existence.
Subject to Article Eight, the Issuer 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
Issuer shall not be required to preserve any such right or franchise if its
respective Board of Directors shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Issuer and that the
loss thereof is not disadvantageous in any material respect to the Holders.
57
Section 1007. Maintenance of Properties.
The Issuer will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Issuer may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Issuer from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Issuer desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 1008. Payment of Taxes and Other Claims.
The Issuer will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Issuer or any Subsidiary or upon
the income, profits or property of the Issuer or any Subsidiary, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Issuer or any Subsidiary; provided,
however, that the Issuer shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1009. Limitation on Liens.
So long as any of the Securities are Outstanding, but only up to the
time all amounts of principal and interest have been placed at the disposal of
the Trustee, the Issuer shall not grant or permit to subsist any Encumbrance
over any or all of its present or future assets, to secure any present or future
Capital Market Indebtedness issued or guaranteed by the Issuer or by any other
Person without making effective provision whereby the Securities shall be
secured equally and ratably with such Capital Market Indebtedness, so long as
such Capital Market Indebtedness shall be so secured.
Section 1010. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Issuer may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 301(23), 901(2)
or 901(8) for the benefit of the Holders of Securities of such series or in
Section 1009 or any term, provision or condition set forth in an indenture
supplemental hereto, if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Issuer and the duties of the Trustee 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 their terms 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 Issuer to redeem any Securities of any series or
issuance shall be evidenced by a Board Resolution. In case of any redemption at
the election of the Issuer of all or less than all the Securities of any series
(including any such redemption affecting only a single Security), the Issuer
shall, at least 60 days prior to the Redemption Date fixed by the Issuer (unless
a shorter notice shall be reasonably satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. 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 Issuer shall furnish the Trustee with an
Officer's 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 are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of Securities of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination which shall not be less than the minimum
authorized denomination for such Security. If less than all of the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence, and
the Trustee shall promptly notify the Issuer in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amounts thereof to be redeemed.
The provisions of the preceding paragraph shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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Section 1104. Notice of Redemption Price.
Notice of redemption shall be given by first-class mail postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date to each Holder of Securities to be redeemed at his or her address appearing
in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, plus accrued interest, if any,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed and if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price, plus
accrued interest, if any, will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price, plus accrued interest,
if any,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) the current conversion price and the date on which the
right to convert such Securities or portions thereof will expire.
(8) the CUSIP number or numbers, if any, with respect to such
Securities.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Issuer shall deposit with the Trustee
or with a Paying Agent (or, if the Issuer is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed (other than those theretofore surrendered for conversion) on
that date.
If the Securities of any series are redeemable at the option of the
Issuer then, upon redemption, the Issuer shall pay a Redemption Price equal to
the greater of:
(1) 100% of the principal amount and premium, if any,
of the Securities of such series plus accrued interest to the
Redemption Date; or
(2) as determined by the Quotation Agent, the sum of
the present values of the remaining scheduled payments of
principal, premium, if any, and interest on the Securities of
such series (not including any portion of such payments of
interest accrued as of the Redemption Date). Such present
values shall be determined by discounting the remaining
principal, premium, if any, and interest payments to the
Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), using the Adjusted
Treasury Yield.
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Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Issuer shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Issuer at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest on 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 Record Dates according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Issuer or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Issuer and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Issuer 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 contained in one or more particular issues
may be redeemed at the option of the Issuer, 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 on any 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, as a result of any change in or amendment to the laws
or any regulations or rulings promulgated thereunder of the jurisdiction (or of
any political subdivision or taxing authority thereof or therein) in which the
Issuer is incorporated (or, in the case of a successor Person to the Issuer, of
the jurisdiction in which such successor Person is organized or any political
subdivision or taxing authority thereof or therein) or 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 such
jurisdiction or such political subdivision or taxing authority (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 specified
for such series pursuant to the terms of the Security (or in the case of a
successor Person to the Issuer, the date on which such successor Person became
such pursuant to Sections 801 and 802), the Issuer (or such successor Person) is
or would be required to pay additional amounts with respect to the Securities on
the next succeeding Interest Payment Date as described in Section 206 or 1004
and the payment of such additional amounts cannot be avoided by the use of any
reasonable measures available to the Issuer. Prior to the giving of notice of
redemption of such Securities pursuant to this Indenture, the Issuer will
deliver to the Trustee an Officer's Certificate, stating that the Issuer 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 Issuer to redeem such Securities pursuant to this Section have been
satisfied.
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Further, if, pursuant to Section 801(3)(a) of this Indenture, a Person
into which the Issuer is merged or to whom the Issuer has conveyed, transferred
or leased its properties or assets has been or would be required to pay any
additional amounts as therein provided, each series of Securities may be
redeemed at the option of such Person 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 on any 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). Prior to the giving of notice of redemption of such
Securities pursuant to this Indenture, such Person shall deliver to the Trustee
an Officer's Certificate, stating that such Person 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 such Person to redeem such
Securities pursuant to this Section have been satisfied.
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ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
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, the cash
amount of any 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 such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
An Issuer (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Issuer 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 sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Securities; provided that the Securities to be credited have not been previously
so credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the Redemption Price, as specified in the
Securities so to be redeemed, for redemption through operation of the sinking
fund and the amount of such 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
Securities, the Issuer will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 50 days prior to 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 Issuer in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
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* * * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
_____________________________
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed on their respective behalves, all as of the day and year first
above written.
DEUTSCHE TELEKOM AG
By: /s/ ppa. ββββββ ββββββββββββ
---------------------------------
Name:
Title:
By: /s/ ppa. ROLF MUEKSCHEL
---------------------------------
Name:
Title:
CITIBANK, N.A.
By: /s/ βββββ� βββββ�
---------------------------------
Name: βββββ� βββββ�
Title: Vice President