1
EXHIBIT 4.2
INTEL CORPORATION
STANDARD INDENTURE PROVISIONS
Dated as of October 20, 1994
2
TABLE SHOWING REFLECTION IN THESE STANDARD
INDENTURE PROVISIONS OF CERTAIN PROVISIONS OF
THE TRUST INDENTURE ACT OF 1939(1)
Provisions of Trust
Indenture Act of 1939 Indenture Provision
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310(a)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.8
310(a)(3) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.7; 9.9(a)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.12(a)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.12(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1; 7.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(a)
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(d)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
315(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(a)(1)
315(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(a)(2)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.9
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(b)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(c)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.7
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1; 8.6
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1
317(a)(1) and (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(6), (7)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.8
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(1) This table is not part of the Standard Indenture Provisions.
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INTEL CORPORATION
STANDARD INDENTURE PROVISIONS
TABLE OF CONTENTS(2)
Page
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ARTICLE 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Certain Definitions . . . . . . . . . . . . . . . . 1
ARTICLE 2 SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.1 Forms Generally . . . . . . . . . . . . . . . . . . 6
Section 2.2 Form of Trustee's Certificate of Authentication . . 6
Section 2.3 Form of Trustee's Certificate of Authentication by
an Authenticating Agent . . . . . . . . . . . . . 7
Section 2.4 Securities Issuable in the Form of a
Global Security . . . . . . . . . . . . . . . . . 7
ARTICLE 3 THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.1 Amount Unlimited; Issuable in Series . . . . . . . 10
Section 3.2 Form and Denominations . . . . . . . . . . . . . . 12
Section 3.3 Authentication and Dating . . . . . . . . . . . . . 12
Section 3.4 Execution of Securities and Coupons . . . . . . . . 13
Section 3.5 Registration; Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . 14
Section 3.6 Mutilated, Destroyed, Lost or Stolen Securities
or Coupons . . . . . . . . . . . . . . . . . . . 16
Section 3.7 Temporary Securities . . . . . . . . . . . . . . . 17
Section 3.8 Payment of Interest; Interest Rights Preserved . . 18
Section 3.9 Cancellation . . . . . . . . . . . . . . . . . . . 19
Section 3.10 Computation of Interest . . . . . . . . . . . . . . 19
Section 3.11 Currency and Manner of Payments in
Respect of Securities . . . . . . . . . . . . . . 19
Section 3.12 Compliance with Certain Laws and Regulations . . . 24
ARTICLE 4 REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . 25
Section 4.1 Applicability of Article . . . . . . . . . . . . . 25
Section 4.2 Notice of Redemption; Selection of Securities . . . 25
Section 4.3 Payment of Securities Called for Redemption . . . . 27
ARTICLE 5 SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . 28
____________________
(2) This Table of Contents does not constitute part of the
Standard Indenture Provisions or have any bearing upon the
interpretation of any of its terms and provisions.
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Section 5.1 Applicability of Article . . . . . . . . . . . . . 28
Section 5.2 Satisfaction of Mandatory Sinking Fund
Payments with Securities . . . . . . . . . . . . 28
Section 5.3 Redemption of Securities for Sinking Fund . . . . . 28
ARTICLE 6 CERTAIN COVENANTS OF THE COMPANY . . . . . . . . . . . . . 31
Section 6.1 Payment of Securities . . . . . . . . . . . . . . . 31
Section 6.2 Other Covenants . . . . . . . . . . . . . . . . . . 31
Section 6.3 Waiver . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE 35
Section 7.1 Semiannual Lists of Holders . . . . . . . . . . . . 35
Section 7.2 Preservation of Information . . . . . . . . . . . . 35
Section 7.3 Periodic Reports by Company . . . . . . . . . . . . 37
Section 7.4 Trustee's Reports to Holders . . . . . . . . . . . 38
Section 7.5 Compliance Certificates and Opinions . . . . . . . 40
ARTICLE 8 REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT . 41
Section 8.1 Events of Default . . . . . . . . . . . . . . . . . 41
Section 8.2 Collection of Indebtedness by Trustee . . . . . . . 44
Section 8.3 Application of Moneys Collected by Trustee . . . . 46
Section 8.4 Limitation on Suits on Indenture; No Limitation on
Suits on Securities . . . . . . . . . . . . . . . 47
Section 8.5 Remedies Cumulative; Delay Not To Impair Rights . . 48
Section 8.6 Directions by Holders of Securities . . . . . . . . 49
Section 8.7 Undertakings for Costs . . . . . . . . . . . . . . 49
Section 8.8 Judgment Currency . . . . . . . . . . . . . . . . . 49
Section 8.9 Notice of Default . . . . . . . . . . . . . . . . . 50
ARTICLE 9 CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . 51
Section 9.1 Certain Duties and Responsibilities . . . . . . . . 51
Section 9.2 Certain Rights of Trustee . . . . . . . . . . . . . 52
Section 9.3 Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . 53
Section 9.4 May Hold Securities . . . . . . . . . . . . . . . . 53
Section 9.5 Money Held in Trust . . . . . . . . . . . . . . . . 53
Section 9.6 Compensation and Reimbursement . . . . . . . . . . 54
Section 9.7 Disqualification; Conflicting Interests . . . . . . 54
Section 9.8 Corporate Trustee Required; Eligibility . . . . . . 55
Section 9.9 Resignation and Removal; Appointment of Successor . 56
Section 9.10 Acceptance of Appointment by Successor . . . . . . 57
Section 9.11 Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . 58
Section 9.12 Preferential Collection of Claims Against Company . 58
Section 9.13 Appointment of Authenticating Agent . . . . . . . . 63
ARTICLE 10 CONCERNING THE HOLDERS OF SECURITIES . . . . . . . . . . . 65
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Section 10.1 Action by Holders . . . . . . . . . . . . . . . . . 65
Section 10.2 Proof of Execution of Instruments by Holders of
Securities . . . . . . . . . . . . . . . . . . . 65
Section 10.3 Persons Deemed Owners . . . . . . . . . . . . . . . 66
Section 10.4 Revocation of Consents; Future Holders Bound . . . 66
ARTICLE 11 HOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . 67
Section 11.1 Purposes of Meetings . . . . . . . . . . . . . . . 67
Section 11.2 Call of Meetings by Trustee . . . . . . . . . . . . 67
Section 11.3 Call of Meetings by Company or Holders . . . . . . 67
Section 11.4 Qualifications for Voting . . . . . . . . . . . . . 68
Section 11.5 Regulations . . . . . . . . . . . . . . . . . . . . 68
Section 11.6 Voting . . . . . . . . . . . . . . . . . . . . . . 69
Section 11.7 No Delay of Rights by Meeting . . . . . . . . . . . 69
ARTICLE 12 SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . 70
Section 12.1 Supplemental Indentures . . . . . . . . . . . . . . 70
Section 12.2 Notice of Supplemental Indenture . . . . . . . . . 72
Section 12.3 Effect of Supplemental Indenture . . . . . . . . . 72
Section 12.4 Notation on Securities and Coupons . . . . . . . . 73
Section 12.5 Issuance of Securities by Successor Corporation . . 73
ARTICLE 13 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS 74
Section 13.1 Satisfaction and Discharge . . . . . . . . . . . . 74
Section 13.2 Application of Moneys . . . . . . . . . . . . . . . 75
Section 13.3 Repayment of Moneys by Paying Agents . . . . . . . 75
Section 13.4 Unclaimed Moneys . . . . . . . . . . . . . . . . . 75
ARTICLE 14 MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . 76
Section 14.1 Limitation of Individual Liability . . . . . . . . 76
Section 14.2 Successors . . . . . . . . . . . . . . . . . . . . 76
Section 14.3 Notice to Holders; Waiver . . . . . . . . . . . . . 76
Section 14.4 Addresses for Notices . . . . . . . . . . . . . . . 77
Section 14.5 Cross References . . . . . . . . . . . . . . . . . 78
Section 14.6 Counterparts . . . . . . . . . . . . . . . . . . . 78
Section 14.7 Headings Not To Affect Construction . . . . . . . . 78
Section 14.8 Trust Indenture Act To Govern . . . . . . . . . . . 78
Section 14.9 Legal Holidays . . . . . . . . . . . . . . . . . . 78
Section 14.10 Governing Law . . . . . . . . . . . . . . . . . . . 78
ARTICLE 15 SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . 79
Section 15.1 Subordination . . . . . . . . . . . . . . . . . . . 79
Section 15.2 Acceleration of Securities . . . . . . . . . . . . 79
Section 15.3 Default on Senior Indebtedness . . . . . . . . . . 79
Section 15.4 Insolvency, etc. . . . . . . . . . . . . . . . . . 80
Section 15.5 Payments and Distributions Received . . . . . . . . 82
Section 15.6 Excess Senior Indebtedness Payment, Subrogation,
etc. . . . . . . . . . . . . . . . . . . . . . . 82
Section 15.7 No Security . . . . . . . . . . . . . . . . . . . . 82
Section 15.8 Obligations Not Impaired . . . . . . . . . . . . . 83
Section 15.9 Subordination Not Affected, etc. . . . . . . . . . 83
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Section 15.10 Changes, Waivers, etc. . . . . . . . . . . . . . . 84
Section 15.11 Payment in Full of Senior Indebtedness . . . . . . 84
Section 15.12 Trustee Entitled To Assume Payments Not Prohibited
in Absence of Notice . . . . . . . . . . . . . . 84
Section 15.13 Application by Trustee of Moneys Deposited With It 84
Section 15.14 Securityholders Authorize Trustee To Effectuate
Subordination of Securities . . . . . . . . . . . 84
Section 15.15 Right of Trustee To Hold Senior
Indebtedness . . . . . . . . . . . . . . . . . . 85
Section 15.16 Article 15 Not To Prevent Events of Default . . . . 85
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ARTICLE 1
DEFINITIONS
Section 1.1 Certain Definitions. Except as otherwise expressly
provided or unless the context otherwise requires, the following items
shall have the meanings specified in this Section 1.1. These definitions
shall be applicable to both the singular and the plural form of the terms
defined. Except as otherwise expressly provided or unless the context
otherwise requires, terms used in this Indenture that are defined in the
Trust Indenture Act, or that are by reference in such Act defined in the
Securities Act of 1933, as amended, have the meanings specified in the
Trust Indenture Act and in the Securities Act of 1933 as in force at the
date of the execution of this Indenture.
"Authenticating Agent" shall mean any authenticating agent appointed
by the Trustee pursuant to Section 9.13.
"Authorized Newspaper" shall mean a newspaper in an official language
of the country of publication customarily published at least once a day,
and customarily published for at least five days in each calendar week, and
of general circulation in such city or cities as may be provided elsewhere
in this Indenture or specified as contemplated by Section 3.1 with respect
to the Securities of any series the terms of which permit Unregistered
Securities or Coupon Securities. 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 in such
city.
"Board of Directors" shall mean either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day," when used in connection with the name of a city, shall
mean any day other than a day on which banking institutions in such city
are authorized or required by law to close, and shall otherwise mean each
day of the week that is not a day on which banking institutions at the
place where any specified act pursuant to this Indenture is to occur are
authorized or required by law to close.
"Commission" shall mean the Securities and Exchange Commission.
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"Company" shall mean Intel Corporation, a Delaware corporation, until
a corporation shall have become a successor pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean the
successor corporation.
"Company Order" and "Company Request" shall mean a written order or
written request signed in the name of the Company by its Chairman or a Vice
Chairman of the Board of Directors, or President or a Vice President, and
by its Treasurer, Assistant Treasurer, Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office" shall mean the principal office of the
Trustee at which at any particular time its corporate trust business shall
be administered, except that with respect to presentation of Registered
Securities for payment or for registration of transfer and exchange,
presentation of Unregistered Securities for registration and the location
of the Securities Register, "Corporate Trust Office" shall mean the office
or agency of the Trustee at which at any particular time its corporate
agency business shall be conducted.
"Coupon" shall mean any interest coupon appertaining to any Security.
"Coupon Security" shall mean any Security authenticated and delivered
with one or more Coupons appertaining thereto.
"Depositary" shall mean the entity, if any, named as the "Depositary"
pursuant to Section 3.1 and, subject to the provisions of this Indenture,
shall also include its successors and assigns.
"Dollar" shall mean the coin or currency of the United States of
America that is legal tender for the payment of public and private debts at
the time of payment.
"Event of Default": See Section 8.1.
"Exchange Rate Officer's Certificate" shall mean a telex or a
certificate setting forth (i) the applicable Official Currency Unit
Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal,
if any, and interest, if any (on an aggregate basis and on the basis of a
Security having a principal amount of 1,000 in the relevant currency unit),
payable on the basis of such Official Currency Unit Exchange Rate, sent (in
the case of a telex) or signed (in the case of a certificate) by the
Treasurer or any Assistant Treasurer of the Company.
"Foreign Currency" shall mean a currency issued by the government of
any country other than the United States.
"Fully Registered Security" shall mean any Security registered as to
principal and interest, if any.
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"Global Security" shall mean a Security issued to evidence all or a
part of any series of Securities that is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to
the Depositary's instructions, all in accordance with this Indenture and
pursuant to a Company Order, which shall be registered as to principal and
interest in the name of the Depositary or its nominee.
"Holder" shall mean, with respect to a Registered Security, the Person
in whose name a particular Registered Security is registered in the
Securities Register; and with respect to an Unregistered Security or a
Coupon, the bearer thereof.
"Indenture" shall mean this instrument as originally executed, or as
it may be amended or supplemented from time to time as herein provided, and
shall include the form and terms of particular series of Securities
established as contemplated hereunder.
The term "interest" when used with respect to noninterest-bearing
Securities, means interest payable after maturity.
"Interest Payment Date" shall mean the Stated Maturity of an
installment of interest on the Securities of any series.
"Officers' Certificate" shall mean a certificate signed by the
Chairman or a Vice Chairman of the Board of Directors, or the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company.
"Original Issue Discount Security" shall mean any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 8.1.
"Outstanding," when used with reference to Securities, shall mean, as
of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount and in the
required currency or currency unit shall have been deposited in
trust with the Trustee or
with any Paying Agent (other than the Company or any other
obligor on the Securities) or shall have been
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set aside and segregated in trust by the Company or any other obligor
on the Securities (if the Company or any other obligor on the
Securities shall act as its own Paying Agent) for the Holders of such
Securities and any Coupons appertaining thereto, provided that if such
Securities are to be redeemed prior to the Stated Maturity thereof,
notice of such redemption shall have been given as provided in
Article 4, or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Securities in lieu of and in substitution for which
other Securities shall have been authenticated and delivered
pursuant to Section 3.5, other than any such Securities in
respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities
owned by the Company or any other obligor on the Securities or any other
Person directly or indirectly controlling, controlled by, or under direct
or indirect common control with the Company or such other obligor (an
"Affiliate") shall be disregarded and deemed not to be Outstanding. In
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor on the Securities or any
Affiliate of the Company or such other obligor. In determining whether the
Holders of the requisite principal amount of Outstanding Securities have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to Section 8.1.
"Overdue Rate" with respect to any series of Securities shall mean the
rate so designated relating to such series as contemplated by Section 3.1.
"Paying Agent" shall mean any person authorized by the Company to pay
the principal of, or premium or interest on, any Securities on behalf of
the Company.
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"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, 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, shall mean the place or places where the principal of, and premium
and interest, if any, on, the Securities of such series are payable as
specified pursuant to Section 3.1.
"Redemption Date," when used with respect to any Security to be
redeemed, shall mean the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, shall mean the price, in the currency or currency unit in which
such Security is denominated or which is otherwise provided for pursuant to
this Indenture, at which it is to be redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security registered as to
principal.
"Responsible Officer," when used with respect to the Trustee, shall
mean the chairman of the board of directors, vice chairman of the board of
directors, the president, any vice president, the secretary, the treasurer,
any trust officer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons
who at the time shall be such officers or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security" or "Securities" shall mean all debentures, notes or other
evidences of indebtedness authenticated and delivered under this Indenture.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such
Security or the Coupon, if any, representing such installment of interest
as the date on which the principal of, or premium or interest on, if any,
such Security is due and payable.
"Trustee" shall mean the Person named as the "Trustee" in the first
paragraph of this Indenture and, subject to the provisions of Article 9,
shall also include its successors and assigns. If there shall be more than
one Trustee at any one time, "Trustee" shall mean each such Trustee and
shall apply to each such Trustee only for those series of Securities with
respect to which it is serving as Trustee.
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Except as provided in Section 12.1, "Trust Indenture Act" shall mean
the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform
Act of 1990, and as in force at the date of execution of this Indenture.
"Unregistered Security" means any Security that is not registered as
to principal.
"Yield to Maturity" means the yield to maturity, calculated at the
time of issuance of a series of Original Issue Discount Securities, or, if
applicable, at the most recent redetermination of interest on such series,
and calculated in accordance with accepted financial practice.
ARTICLE 2
SECURITY FORMS
Section 2.1 Forms Generally. The Securities of each series, and the
Coupons, if any, to be attached thereto, shall be in substantially the form
or forms established pursuant to Section 3.1, in each case with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture. The Securities and Coupons
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with
any law or with any rules made pursuant thereto or with any rules of any
securities exchange or as may be determined by the officers executing such
Securities and Coupons, as evidenced by their execution of the Securities
and Coupons.
The definitive Securities and Coupons, if any, of each series 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 and Coupons, as evidenced by their execution of such
Securities and Coupons, subject, with respect to the Securities of any
series, to the rules of any securities exchange on which the Securities of
such series are listed.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's Certificate of Authentication on all Securities shall be in
substantially the following form:
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This is one of the Securities of the series designated herein provided
for under the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By _________________________________
Authorized Officer
Section 2.3 Form of Trustee's Certificate of Authentication by an
Authenticating Agent. If at any time there shall be an Authenticating
Agent appointed with respect to any series of Securities, then the
Trustee's Certificate of Authentication by such Authenticating Agent on all
Securities of each such series shall be in substantially the following
form:
This is one of the Securities of the series designated herein provided
for under the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By [NAME OF AUTHENTICATING AGENT],
Authenticating Agent
By ____________________________
Authorized Officer
Section 2.4 Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section 3.1 that the
Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute
and the Trustee shall, in accordance with Section 3.3 and the Company Order
delivered to the Trustee thereunder, authenticate and deliver, such Global
Security or Securities, which:
(i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the Outstanding
Securities of such series to be represented by such Global
Security or Securities;
(ii) shall be registered in the name of the Depositary for
such Global Security or Securities or its nominee;
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(iii) shall be delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction; and
(iv) shall bear a legend substantially to the following
effect:
"Unless and until it is exchanged in whole or in part
for the individual Securities represented hereby, this
Global Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary
or any such nominee to a successor Depositary or a
nominee of such successor Depositary."
Without limiting the foregoing, the Company and the Trustee shall have
no responsibility, obligation or liability with respect to: (x) the
maintenance, review or accuracy of the records of the Depositary or any of
its participating organizations with respect to the ownership interest in
or payments with respect to such Global Security, (y) any communication
with or delivery of any notice (including notices of redemption) with
respect to the series of Securities represented by the Global Security to
any Person having any ownership interest in such Global Security or to any
of the Depositary's participating organizations or (z) any payment made on
account of any beneficial ownership interest in such Global Security.
(b) Notwithstanding any other provision of this Section 2.4 or of
Section 3.5, unless the terms of a Global Security expressly permit such
Global Security to be exchanged in whole or in part for individual
Securities, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 3.5, only to the Depositary or
another nominee of the Depositary for such Global Security, or to a
successor Depositary for such Global Security selected or approved by the
Company or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or if at any time the Depositary for the Securities
for such series shall no longer be eligible or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, the Company shall appoint a successor Depositary with respect
to such Global Security. If a successor Depositary for such Global
Security is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to
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Section 3.1(17) shall no longer be effective with respect to such Global
Security and the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Securities
of such series in exchange for such Global Security, will authenticate and
deliver individual Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series issued or issuable in the form
of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will execute, and
the Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Securities of such series in exchange in whole or in
part for such Global Security, will authenticate and deliver individual
Securities of such series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
(iii) If specified by the Company pursuant to Section 3.1 with
respect to Securities issued or issuable in the form of a Global Security,
the Depositary for such Global Security may surrender such Global Security
in exchange in whole or in part for individual Securities of such series of
like tenor and terms in definitive form on such terms as are acceptable to
the Company and such Depositary. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service charge, (1) to
each Person specified by such Depositary a new Security or Securities of
the same series of like tenor and terms and of any authorized denominations
as requested by such Person or the Depositary in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Global Security; and (2) to such Depositary a new Global Security of like
tenor and terms and in a denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute, and the Trustee will authenticate and
deliver, individual Registered Securities in authorized denominations.
Upon the exchange of a Global Security for individual Securities, such
Global Security shall be canceled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section 2.4 shall be
registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise,
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shall instruct the Trustee. The Trustee shall deliver such Securities to
the persons in whose names such Securities are so registered.
ARTICLE 3
THE SECURITIES
Section 3.1 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 the authority
granted in a resolution of the Board of Directors or established in one or
more indentures supplemented hereto, prior to the issuance of any
Securities of any series:
(1) the title of the Securities of such series (which shall
distinguish the Securities of such series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of such 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 such series
pursuant to Sections 2.4, 3.5, 3.6, 3.7, 4.3 or 12.4);
(3) the date or dates on which such Securities may be
issued;
(4) the date or dates, which may be serial, on which the
principal and premium, if any, of the Securities of such series
is payable;
(5) the rate or rates, or the method of determination
thereof, at which the Securities of such series shall bear
interest, if any; the date or dates from which such interest
shall accrue; the Interest Payment Dates on which such interest
shall be payable and, in the case of Registered Securities, the
record dates, if other than as set forth in Section 3.8, for the
determination of Holders to whom interest is payable; and whether
any special terms and conditions relating to the payment of
additional amounts in respect of payments on the Securities of
such series shall in the event of certain changes in the United
States federal income tax laws, apply to Unregistered Securities
of such series or to Registered Securities of such series;
(6) the Place of Payment of such series;
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(7) the provisions, if any, establishing the price or
prices at which, the period or periods within which and the terms
and conditions upon which Securities of such series may be
redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise, and whether any
special terms and conditions of redemption shall apply to
Unregistered Securities of such series or to Registered
Securities of such series;
(8) the obligation, if any, of the Company to redeem,
purchase or repay Securities of such series pursuant to any
sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices, in the currency or currency unit
in which the Securities of such series are payable, at which and
the period or periods within which and the terms and conditions
upon which Securities of such series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of 1,000 and any integral
multiple thereof, in the currency or currency unit in which the
Securities of such series are denominated, the denominations in
which Securities of such series shall be issuable;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of such series which shall
be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 8.1 or provable in bankruptcy
pursuant to Section 8.2;
(11) whether payment of the principal of, premium, if any,
and interest, if any, on the Securities of such series shall be
with or without deduction for taxes, assessments or governmental
charges, and with or without reimbursement of taxes, assessments
or governmental charges paid by Holders;
(12) any Events of Default with respect to the Securities of
such series, if not set forth herein;
(13) if other than the rate of interest stated in the title
of the Securities of such series, the applicable Overdue Rate;
(14) if the Securities of such series do not bear interest,
the applicable dates for the purpose of clause (i) of
Section 7.1;
(15) whether the Securities of such series are to be issued
as Registered Securities (with or without
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Coupons) or Unregistered Securities or both, and, if Unregistered
Securities or Coupon Securities are issued, whether Unregistered
Securities or Coupon Securities of such series may be exchanged for
Registered Securities or Fully Registered Securities of such series
and whether Registered Securities or Fully Registered Securities of
such series may be exchanged for Unregistered Securities of such
series and the circumstances under which and the place or places where
any such exchanges, if permitted, may be made;
(16) the currency or currencies, or currency unit or
currency units (or with reference to any index or indices with
respect to a currency or currency unit), whether Dollars or
otherwise, in which the Securities of such series or any interest
or other amounts payable with respect thereto, including Coupons,
are to be denominated, payable, redeemable or repurchasable, as
the case may be;
(17) whether the Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities;
the terms and conditions, if any, upon which such Global Security
or Securities may be exchanged in whole or in part for other
individual Securities, and the Depositary for such Global
Security or Securities;
(18) the terms and conditions, if any, upon which any
Securities of such series may or shall be converted into other
securities or property; and
(19) any other terms of such series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the authority granted in such resolution of the Board of
Directors or in any such indenture supplemental thereto.
Section 3.2 Form and Denominations. In the absence of any
specification pursuant to Section 3.1 with respect to the Securities of any
series, the Securities of such series shall be issuable as Fully Registered
Securities in denominations of 1,000 and any integral multiple thereof, and
shall be payable in Dollars.
Section 3.3 Authentication and Dating. At any time and from time to
time after the execution and delivery of this Indenture, the Company may
deliver Securities of any series, with appropriate Coupons, if any,
attached thereto, executed by
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the Company to the Trustee for authentication. Except as otherwise
provided in this Article 3, the Trustee shall thereupon authenticate and
deliver, or cause to be authenticated and delivered, such Securities to or
upon Company Order, without any further action by the Company. In
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, prior to the initial authentication
of such Securities, and (subject to Section 9.1) shall be fully protected
in relying upon:
(1) a Board Resolution relating thereto and, if applicable,
an appropriate record of any action taken pursuant to such Board
Resolution, in each case certified by the Secretary or an
Assistant Secretary of the Company;
(2) an executed supplemental indenture, if any, relating
thereto;
(3) an Officers' Certificate, which shall state that all
conditions precedent provided for in this Indenture relating to
the issuance of such Securities have been complied with; and
(4) an Opinion of Counsel.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security of any series shall be dated
the date of its authentication, except as otherwise provided pursuant to
Section 3.1 with respect to the Securities of such series.
Section 3.4 Execution of Securities and Coupons. The Securities and
the Coupons, if any, appertaining thereto shall be signed in the name or on
behalf of the Company by the manual or facsimile signatures of the Chairman
of the Board of Directors, any Vice Chairman, the President or any Vice
President and additionally, in the case of each Security, under its
corporate seal (which may be printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise) and attested to by the Secretary or any
Assistant Secretary, the signatures of whom may be manual or facsimile. No
Security or Coupon appertaining thereto shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in
the form recited above, executed by or on behalf of the Trustee by manual
signature. Such certificate by or on behalf of the Trustee upon any
Security executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this
Indenture.
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If any officer of the Company who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before such
Securities or Coupons shall have been authenticated and delivered by or on
behalf of the Trustee, or disposed of by the Company, such Securities and
Coupons nevertheless may be authenticated, delivered or disposed of as
though the individual who signed such Securities or Coupons had not ceased
to be such officer of the Company. Furthermore, any Security or Coupon may
be signed on behalf of the Company by such individuals as, at the actual
date of the execution of such Security or Coupon, shall be the proper
officers of the Company, although at the date of the execution of this
Indenture any such individual was not such an officer.
The Trustee shall not authenticate or deliver any Coupon Security
until any matured Coupons appertaining thereto have been detached and
cancelled, except as otherwise provided or permitted by this Indenture.
Section 3.5 Registration; Registration of Transfer and Exchange.
Subject to the conditions set forth below or to Section 2.4, Securities of
any series may be exchanged for a like aggregate principal amount of
Securities of the same series and having the same terms of other authorized
denominations. Securities to be exchanged shall be surrendered together,
in the case of Coupon Securities, with all unmatured Coupons and matured
Coupons in default appertaining thereto, at the offices or agencies to be
maintained by the Company for such purposes as provided in Section 6.2(1),
and the Company shall execute or register and the Trustee or any
Authenticating Agent shall authenticate and deliver in exchange therefor
the Security or Securities which the Holder making the exchange shall be
entitled to receive.
The Company shall keep or cause to be kept, at one of such offices or
agencies, a register for each series of Securities issued hereunder which
may include Registered Securities (hereinafter collectively referred to as
the "Securities Register") in which, subject to reasonable regulations it
may prescribe, the Company shall provide for the registration of Registered
Securities of such series and shall register the transfer of Registered
Securities of such series as provided in this Article 3. The Securities
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. The Trustee and the
Authenticating Agent are hereby appointed "Securities Registrars" for the
purpose of registering Registered Securities and registering transfers of
Registered Securities as herein provided. Upon due presentment for
registration of transfer of any Security of any series at any such office
or agency, the Company shall execute and register and the Trustee or any
Authenticating Agent shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Securities of the
same series for an equal aggregate principal amount.
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At the option of the Holder thereof, Securities of any series, whether
Registered Securities or Unregistered Securities, which by their terms are
registrable as to principal only or as to principal and interest, may, to
the extent and under the circumstances specified pursuant to Section 3.1,
be exchanged for such Registered Securities with Coupons or Fully
Registered Securities of such series, as may be issued by the terms
thereof. Securities of any series, whether Registered Securities or
Unregistered Securities, which by their terms provide for the issuance of
Unregistered Securities, may not, except to the extent and under the
circumstances specified pursuant to Section 3.1, be exchanged for
Unregistered Securities of such series. Securities so issued in exchange
for other Securities shall be of like Stated Maturity. Unregistered
Securities of any series issued in exchange for Registered Securities of
such series between the record date for such Registered Securities and the
next Interest Payment Date will be issued without the Coupon relating to
such Interest Payment Date, and Unregistered Securities surrendered in
exchange for Registered Securities between such dates shall be surrendered
without the Coupon relating to such Interest Payment Date.
Upon presentation for registration of any Unregistered Security of any
series which by its terms is registrable as to principal, at the office or
agency of the Company to be maintained as provided in Section 6.2(1), such
Security shall be registered as to principal in the name of the Holder
thereof, and such registration shall be noted on such Security. Any
Security so registered shall be transferable on the Securities Register of
the Company upon presentation of such Security at such office or agency for
similar notation thereon, but, to the extent permitted by law, such
Security may be discharged from registration by being in a like manner
transferred to bearer, whereupon transferability by delivery shall be
restored. To the extent permitted by law, Unregistered Securities shall
continue to be subject to successive registrations and discharges from
registration at the option of the Holders thereof.
Unregistered Securities and Coupons shall be transferred by delivery.
All Securities presented for registration of transfer or for exchange,
redemption or payment shall (if so required by the Company or the
Securities Registrar) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company
and the Securities Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing.
Each Security issued upon registration of transfer or exchange of
Securities pursuant to this Section 3.5 shall be the valid obligation of
the Company, evidencing the same indebtedness and entitled to the same
benefits under this Indenture as the Security or Securities surrendered
upon registration of such transfer or exchange.
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No service charge shall be made for any registration or transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.7, Section 4.3, or
Section 12.4 not involving any transfer.
The Company shall not be required (a) to issue, exchange or register
the transfer of any 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 such series and ending at the close of
business on the day of such mailing, or (b) to exchange or register the
transfer of any Securities selected, called or being called for redemption
except, in the case of any Security to be redeemed in part, the portion
thereof not to be so redeemed.
None of the Company, the Trustee, any Paying Agent or the Securities
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 3.6 Mutilated, Destroyed, Lost or Stolen Securities or
Coupons. If any temporary or definitive Security or Coupon shall become
mutilated or be destroyed, lost or stolen, and neither the Company nor the
Trustee has been notified that such Security or Coupon has been acquired by
a bona fide purchaser, the Company in the case of a mutilated Security or
Coupon shall, and in the case of a lost, stolen or destroyed Security or
Coupon may in its discretion, execute a new Security (with Coupons, if any,
attached to the mutilated, destroyed, lost or stolen Security so that
neither gain nor loss shall result) or new Coupon, as appropriate. The new
Security shall be of the same series, tenor and principal amount, bearing a
number, letter or other distinguishing symbol not contemporaneously
Outstanding. Upon a Company Request, the Trustee shall authenticate and
deliver, or cause to be authenticated and delivered, such new Security or
new Coupon in exchange and substitution for the mutilated Security or
Coupon, or in lieu of and in substitution for the Security or Coupon so
destroyed, lost or stolen, or if any such Security or Coupon shall have
matured or shall be about to mature, instead of issuing a substituted
Security or Coupon, the Company may pay or authorize the payment of the
same without surrender thereof (except in the case of a mutilated Security
or Coupon). Interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside of the United States, unless otherwise provided pursuant to
Section 3.1. In every case, the applicant for a substituted Security or
Coupon shall furnish to the Company and to the Trustee such security or
indemnity as may be required by them to
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save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof.
Upon the issuance of any substituted Security or Coupon under this
Section 3.6, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee and any Authenticating Agent) connected therewith.
Every substituted Security or Coupon issued pursuant to the provisions
of this Section 3.6 because a Security or Coupon is destroyed, lost or
stolen shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security or Coupon
shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities and Coupons of the same series duly issued hereunder. The
foregoing provisions of this Section 3.6 are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities
and Coupons and shall preclude (to the extent lawful) any and all other
rights or remedies with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 3.7 Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and the
Trustee shall authenticate and deliver temporary Securities (printed,
lithographed or typewritten). Temporary Securities shall be issuable in
any authorized denomination and substantially in the form of the definitive
Securities in lieu of which they are issued but with such omissions,
insertions and variations as may be appropriate for temporary Securities,
all as may be determined by the Company. Every such temporary Security
shall be executed by the Company and shall be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with the
same effect, as the definitive Securities in lieu of which they are issued.
Temporary Securities may be issued as Registered Securities or Unregistered
Securities, with or without one or more Coupons attached. Without
unreasonable delay, the Company will execute and deliver to the Trustee
definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor, at the
Corporate Trust Office of the Trustee, or, in the case of temporary
Securities issued in respect of Unregistered Securities of any series, at
the corporate trust office of the Trustee located in a city specified
elsewhere in this Indenture or pursuant to Section 3.1, and the Trustee
shall authenticate and deliver in exchange for such temporary Securities an
equal aggregate
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principal amount of definitive Securities of the same series with
appropriate Coupons, if any, attached. Such exchange shall be made by the
Company at its own expense and without any charge therefor except that if
any such exchange involves any registration of transfer, the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto. 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
authenticated and delivered hereunder.
Section 3.8 Payment of Interest; Interest Rights Preserved. The
Holder of any Fully Registered Securities at the close of business on any
record date with respect to any Interest Payment Date shall be entitled to
receive the interest, if any, payable on such Interest Payment Date
notwithstanding the cancellation of such Securities upon any transfer or
exchange after the record date and before such Interest Payment Date. In
the case of Coupon Securities, the Holder of any Coupon shall be entitled
to receive the interest, if any, payable on such Interest Payment Date,
upon surrender on such Interest Payment Date of the Coupon in respect of
such interest. Except as otherwise specified as contemplated by
Section 3.1, for Fully Registered Securities of a particular series the
term "record date" as used in this Section 3.8 with respect to any Interest
Payment Date shall mean the close of business on the last day of the
calendar month preceding such Interest Payment Date if such Interest
Payment Date is the fifteenth day of a calendar month and shall mean the
close of business on the fifteenth day of the calendar month preceding such
Interest Payment Date if such Interest Payment Date is the first day of a
calendar month, whether or not such day shall be a Business Day.
If and to the extent the Company shall default in the payment of
interest due in respect of any Fully Registered Securities, such defaulted
interest shall be paid by the Company, at its election in each case, as
provided either in clause (1) or (2) below:
(1) The Company may make payment of any defaulted interest
to the Holder of Fully Registered Securities at the close of
business on a subsequent record date established by notice given
by mail by or on behalf of the Company to such Holder not less
than 15 days preceding such subsequent record date, such record
date to be not less than 10 days preceding the date of payment of
such defaulted interest.
(2) The Company may make payment of any defaulted interest
on the Fully Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of such series may be
listed, and upon such notice as may be required by
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such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Any defaulted interest payment in respect of a Coupon Security of any
series shall be payable pursuant to procedures satisfactory to the Trustee
so that there is no discrimination between the Holders of Fully Registered
Securities and Coupon Securities of such series, and notice of the payment
date therefor shall be given by the Trustee, in the name and at the expense
of the Company, in the manner provided in Section 14.3.
Subject to the foregoing provisions of this Section 3.8, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 3.9 Cancellation. All Securities surrendered for the purpose
of payment, redemption, exchange or registration of transfer or for credit
against any sinking fund, and all Coupons surrendered for payment or
exchange, shall, if surrendered to the Company or any Paying Agent or any
Securities Registrar, be surrendered to the Trustee and promptly cancelled
by it, or, if surrendered to the Trustee, shall be promptly cancelled by
it, and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The
Trustee may destroy cancelled Securities and Coupons and deliver a
certificate of such destruction to the Company or, at the written request
of the Company, shall deliver such cancelled Securities and Coupons to the
Company. If the Company shall acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities or Coupons unless and until the
same are surrendered to the Trustee for cancellation.
Section 3.10 Computation of Interest. Except as otherwise specified
as contemplated by Section 3.1 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 3.11 Currency and Manner of Payments in Respect of
Securities.
(a) With respect to Registered Securities of any series denominated
in Dollars or Foreign Currency and with respect to Registered Securities of
any series denominated in any currency unit, with respect to which the
Holders of Securities of such series have not made the election provided
for in paragraph (b) below, the following payment provisions shall apply:
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(1) Except as provided in subparagraph (a)(2) or in
subparagraph (e) below, payment of the principal of and premium,
if any, on any Registered Security will be made at the Place of
Payment by delivery of a check in the currency or currency unit
in which the Security is payable on the payment date against
surrender of such Registered Security, and any interest on any
Fully Registered Security will be paid at the Place of Payment by
mailing a check in the currency or currency unit in which such
interest is payable to the Person entitled thereto at the address
of such Person appearing on the Securities Register.
(2) Payment of the principal of, premium, if any, and (with
respect to Fully Registered Securities only) interest, if any, on
such Security may also, subject to applicable law and
regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(b) With respect to Registered Securities of any series denominated
in any currency unit, the following payment provisions shall apply, except
as otherwise provided in paragraphs (e) and (f) below:
(1) It may be provided pursuant to Section 3.1 with respect
to the Securities of such series that Holders shall have the
option to receive payments of principal of, premium, if any, and
(with respect to Fully Registered Securities only) interest, if
any, on such Securities in any of the currencies which may be
designated for such election in such Securities by delivering to
the Trustee a written election, to be in form and substance
satisfactory to the Trustee, not later than the close of business
on the record date immediately preceding the applicable payment
date. Such election will remain in effect for such Holder until
changed by the Holder by written notice to the Trustee (but any
such change must be made not later than the close of business on
the record date immediately preceding the next payment date to be
effective for the payment to be made on such payment date, and no
such change may be made with respect to payments to be made on
any Security of such series with respect to which notice of
redemption has been given by the Company pursuant to Article 4).
Any Holder of any such Security who shall not have delivered any
such election to the Trustee not later than the close of business
on the applicable record date will be paid the amount due on the
applicable payment date in the relevant currency unit as provided
in paragraph (a) of this Section 3.11. Payment of principal of
and premium, if any, shall be made on the
payment date against surrender of such Security. Pay-
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ment of principal of, premium, if any, and (with respect to Fully
Registered Securities only) interest, if any, shall be made at the
Place of Payment by mailing at such location a check, in the
applicable currency or currency unit to the Person entitled thereto at
the address of such Person appearing on the Securities Register.
(2) Payment of the principal of, premium, if any, and (with
respect to Fully Registered Securities only) interest, if any, on
such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(c) Payment of the principal of and premium, if any, on any
Unregistered Security and of interest on any Coupon Security will be made
unless otherwise specified pursuant to Section 3.1 or Section 12.1(e) at
such place or places outside the United States as may be designated by the
Company pursuant to any applicable laws or regulations by any appropriate
method in the currency or currency unit in which the Security is payable
(except as provided in paragraph (e) below) on the payment date against
surrender of the Unregistered Security, in the case of payment of principal
and premium, if any, or the relevant Coupon, in the case of payment of
interest, if any. Except as provided in paragraph (e) below, payment with
respect to Unregistered Securities and Coupons will be made by check,
subject to any limitations on the methods of effecting such payment
specified in the terms of the Security established as provided in
Section 3.1 and Section 12.1(e) or required under applicable laws and
regulations.
(d) Not later than the fourth Business Day after the record date for
each payment date, the Trustee will deliver to the Company a written notice
specifying, in the currency or currency unit in which each series of the
Securities is payable, the aggregate amounts of principal of, and premium
and interest, if any, on, the Securities to be made on such payment date,
specifying the amounts so payable in respect of Fully Registered
Securities, Registered Securities with Coupons and Unregistered Securities
and in respect of the Registered Securities as to which the Holders of
Securities denominated in any currency unit shall have elected to be paid
in another currency as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for pursuant to
Section 3.1, and if at least one Holder has made such election, then not
later than the eighth Business Day following each record date the Company
will deliver to the Trustee an Exchange Rate Officer's Certificate in
respect of the Dollar or Foreign Currency payments to be made on such
payment date. The Dollar or Foreign Currency amount receivable by Holders
of Registered Securities denominated in a currency unit who have elected
payment in such currency as provided in paragraph (b) above shall be
determined
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by the Company on the basis of the applicable Official Currency Unit
Exchange Rate set forth in the applicable Exchange Rate Officer's
Certificate. As used herein, "Official Currency Unit Exchange Rate" means,
with respect to any payment to be made hereunder, the exchange rate between
the relevant currency unit and the Dollar calculated by the agency
specified pursuant to Section 3.1 for the Securities of the relevant series
on the second Business Day (in the city in which such agency has its
principal office) immediately preceding the applicable payment date.
(e) If a Foreign Currency in which any of the Securities are
denominated or payable ceases to be used both by the government of the
country which issued such currency and for the settlement of transactions
by public institutions of or within the international banking community, or
if any currency unit in which a Security is denominated or payable ceases
to be used for the purposes for which it was established, then with respect
to each date for the payment of principal of, and premium and interest, if
any, on, the applicable Securities denominated or payable in such Foreign
Currency or such currency unit occurring after the last date on which such
Foreign Currency or such currency unit was so used (the "Conversion Date"),
the Dollar shall be the currency of payment for use on each such payment
date. The Dollar amount to be paid by the Company to the Trustee and by
the Trustee or any Paying Agent to the Holders of such Securities with
respect to such payment date shall be the Dollar Equivalent of the Foreign
Currency or, in the case of a currency unit, the Dollar Equivalent of the
Currency Unit as determined by the Trustee or the clearinghouse bank, if
any, from time to time selected by the Trustee for purposes of this Section
(the "Dollar Determination Agent"), as of the record date (the "Valuation
Date") in the manner provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in a currency
unit elects payment in a specified Foreign Currency as provided for by
paragraph (b) and such Foreign Currency ceases to be used both by the
government of the country which issued such currency and for the settlement
of transactions by public institutions of or within the international
banking community, such Holder shall receive payment in such currency unit,
or if any such currency unit ceases to be used for the purpose for which it
was established, such Holder shall receive payment in Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Trustee or the Dollar Determination Agent, if any, as of
each Valuation Date and shall be obtained by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on the Valuation
Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Trustee or the Dollar Determination Agent, if
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any, as of each Valuation Date and shall be the sum obtained by adding
together the results obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate on the
Valuation Date for such Component Currency.
(i) For purposes of this Section 3.11, the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit.
A "Specified Amount" of a Component Currency shall mean the number of
units or fractions thereof which such Component Currency represented in the
relevant currency unit on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion. If after the
Conversion Date two or more Component Currencies are consolidated into a
single currency, the Specified Amounts of such Component Currencies shall
be replaced by an amount in such single currency equal to the sum of the
Specified Amounts of such consolidated Component Currencies expressed in
such single currency, and such amount shall thereafter be a Specified
Amount and such single currency shall thereafter be a Component Currency.
If after the Conversion Date any Component Currency shall be divided into
two or more currencies, the Specified Amount of such Component Currency
shall be replaced by Specified Amounts of such two or more currencies, the
sum of which, at the Market Exchange Rate of such two or more currencies on
the date of such replacement, shall be equal to the Specified Amount of
such former Component Currency divided by the number of currencies into
which such Component Currency was divided, and such amounts shall
thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon Dollar
buying rate for that currency for cable transfers quoted on the Valuation
Date as certified for customs purposes by the Federal Reserve Bank of New
York. If such rates are not available for any reason with respect to one
or more currencies for which an Exchange Rate is required, the Trustee or
the Dollar Determination Agent, if any, shall use, in its sole discretion
and without liability on its part, such quotation of the Federal Reserve
Bank of New York as of the most recent available date, or quotations from
one or more major banks in the United States or in the country of issue of
the currency in question, or such other quotations as the Trustee or the
Dollar Determination Agent, if any, shall deem appropriate. Unless
otherwise specified by the Trustee or the Dollar Determination Agent, if
any, if there is more than one market for dealing in any currency by reason
of foreign exchange regulations or otherwise, the market to be used in
respect of such currency shall be
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that upon which a nonresident issuer of securities designated in such
currency would purchase such currency in order to make payments in respect
of such securities. With regard to any currency unit, "Market Exchange
Rate" shall mean the rate of exchange as quoted from one or more major
banks in the United States, or such other rates of exchange designated from
time to time by the Board of Directors pursuant to Section 3.1 or as the
Trustee or Dollar Determination Agent, if any, shall deem appropriate.
All decisions and determinations of the Trustee or the Dollar
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon
the Company and all Holders of the Securities and Coupons, denominated or
payable in the relevant currency or currency units. If a Foreign Currency
ceases to be used both by the government of the country which issued such
currency and for the settlement of transactions by public institutions of
or within the international banking community, the Company, after learning
thereof, will immediately give notice thereof to the Trustee (and the
Trustee will promptly thereafter give notice in the manner provided in
Section 14.3 to the Holders) specifying the Conversion Date. If any
currency unit in which Securities or Coupons are denominated or payable
ceases to be used for the purposes for which it was established, the
Company, after learning thereof, will immediately give notice thereof to
the Trustee (and the Trustee will promptly thereafter give notice in the
manner provided in Section 14.3 to the Holders) specifying the Conversion
Date and the Specified Amount of each Component Currency on the Conversion
Date. In the event of any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above, the Company, after
learning thereof, will similarly give notice to the Trustee. The Trustee
shall be fully justified and protected in relying and acting upon
information received by it from the Company and the Dollar Determination
Agent, if any, and shall not otherwise have any duty or obligation to
determine such information independently.
Section 3.12 Compliance with Certain Laws and Regulations. If any
Unregistered Securities or Coupon Securities are to be issued in any series
of Securities, the Company will use reasonable efforts to provide for
arrangements and procedures designed pursuant to laws or regulations then
applicable to ensure that such Unregistered Securities or Coupon Securities
are sold or resold, exchanged, transferred or paid only in compliance with
such laws or regulations and without adverse consequences to the Company.
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ARTICLE 4
REDEMPTION OF SECURITIES
Section 4.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable
before their maturity except as otherwise specified as contemplated by
Section 3.1 for the Securities of such series.
Section 4.2 Notice of Redemption; Selection of Securities. If the
Company shall desire to exercise the right to redeem all or any part of the
Securities of any series (or all or any part of the Unregistered Securities
of such series or all or any part of the Registered Securities of such
series, if the terms and conditions of redemption shall differ with respect
to Unregistered Securities and Registered Securities of such series as
specified in the terms of such Securities established pursuant to
Section 3.1) in accordance with their terms, the Company shall fix a
Redemption Date and the Company or, at the option of the Company, the
Trustee on behalf of the Company shall provide notice of such redemption at
least 30 and not more than 60 days before such Redemption Date to the
Holders of Securities of such series so to be redeemed as a whole or in
part in the manner provided in Section 14.3. Notice given in the manner
herein specified shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case, failure to
give such notice or any defect in the notice to the Holder of any Security
of a series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other
Security of such series.
Each such notice of redemption shall specify:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the Place or Places of Payment;
(d) that the Securities of such series are being redeemed
at the option of the Company pursuant to provisions contained in
the terms of the Securities of such series or in a supplemental
indenture establishing such series, together with a brief
statement of the facts permitting such redemption;
(e) that payment will be made upon presentation and
surrender of the applicable Securities;
(f) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for payment must be
accompanied by all
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Coupons, if any, maturing on or after the date fixed for redemption,
or the amount of any such missing Coupon or Coupons will be deducted
from the sum due for payment;
(g) that any interest accrued to the Redemption Date will
be paid as specified in the notice; and
(h) that on and after the Redemption Date, any interest
thereon or on the portions thereof to be redeemed will cease to
accrue.
If less than all the Securities of any series are to be redeemed, the
notice of redemption shall specify the numbers of the Securities of such
series to be redeemed. If only Unregistered Securities of any series are
to be redeemed, and if such Unregistered Securities may be exchanged for
Registered Securities, the notice of redemption shall specify the last date
on which exchanges of Unregistered Securities for Registered Securities not
subject to redemption may be made. If any Security of any series is to be
redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and
after the Redemption Date, upon surrender of such Security or any Coupons
appertaining thereto, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof and with
appropriate Coupons will be issued. In the case of Securities providing
appropriate space for such notation, at the option of the Holders, the
Trustee, in lieu of delivering a new Security or Securities, may make a
notation on such Security of the payment of the redeemed portion thereof.
On or before (but at least one Business Day before, in the case of
payments made in a currency or currency unit other than Dollars) the
Redemption Date with respect to the Securities of any series stated in the
notice of redemption given as provided in this Section 4.2, the Company
will deposit with the Trustee or with one or more Paying Agents an amount
of money in the currency or currency unit in which the Securities of such
series and any Coupons appertaining thereto are payable (except as
otherwise specified as contemplated by Section 3.1 for the Securities of
such series and except as provided in Sections 3.11(b), 3.11(e) and 3.11(f)
of this Indenture) sufficient to redeem on such Redemption Date all the
Securities or portions thereof so called for redemption at the applicable
Redemption Price, together with accrued interest to such Redemption Date.
If the Company is acting as its own Paying Agent, it will segregate such
amount and hold it in trust as provided in Section 6.2(7).
If fewer than all the Securities of a series are to be redeemed
(except in the case of a redemption in whole of the Unregistered
Securities, the Coupon Securities, the Registered Securities or the Fully
Registered Securities of such series),
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the Company will give the Trustee written notice not less than 45 days
before the Redemption Date of the aggregate principal amount of Securities
to be redeemed, and the Trustee shall select, not more than 60 days before
the Redemption Date and in such manner as in its sole discretion it shall
deem appropriate and fair, the Securities of such series or portions
thereof (in multiples of 1,000 in the currency or currency unit in which
the Securities of such series are denominated, except as otherwise set
forth in the applicable form of Security) to be redeemed.
Section 4.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as provided in Section 4.2 or Section 5.3, the
Securities or portions of Securities of the series with respect to which
such notice has been given shall become due and payable on the Redemption
Date and at the place or places stated in such notice at the applicable
Redemption Price, together with any interest accrued to such Redemption
Date. On and after the Redemption Date (unless the Company shall default
in the payment of such Securities at the applicable Redemption Price,
together with any interest accrued to the Redemption Date) any interest on
the Securities or portions of Securities of any series so called for
redemption shall cease to accrue. On presentation and surrender of such
Securities and all Coupons, if any, appertaining thereto, at a Place of
Payment in such notice specified, such Securities and Coupons or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price, together with any interest accrued thereon to
the applicable Redemption Date in the currency or currency unit in which
the Securities of such series and the Coupons, if any, appertaining thereto
are payable (except as otherwise specified as contemplated by Section 3.1
for the Securities of such series and except as provided in Sections
3.11(b), 3.11(e) and 3.11(f) of this Indenture).
If any Coupon Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing on or after the Redemption
Date, such Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing Coupons or the
surrender of such missing Coupon or Coupons may be waived by the Company
and the Trustee, if there be furnished to them such security or indemnity
as they may require to save each of them and any Payment Agent harmless.
If thereafter the Holder of such Security shall surrender to any Paying
Agent any such missing Coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that, unless otherwise
provided pursuant to Section 3.1 or Section 12.1(e), interest represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an office or agency located outside of the United States.
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Upon presentation of any Security redeemed in part only and the
Coupons, if any, appertaining thereto, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series and
the Coupons, if any, appertaining thereto, of authorized denominations, in
aggregate principal amount equal to the unredeemed portion of the Security
so presented.
ARTICLE 5
SINKING FUNDS
Section 5.1 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 3.1 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."
Section 5.2 Satisfaction of Mandatory Sinking Fund Payments with
Securities. In lieu of making all or any part of any mandatory sinking
fund payment with respect to any Securities of a series in cash, the
Company may at its option (a) deliver to the Trustee Securities of that
series (together with the unmatured Coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, or (b) receive
credit for Securities of that series that have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through
the application of mandatory or optional sinking fund payments pursuant to
the terms of the Securities of such series; provided that such Securities
have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
Section 5.3 Redemption of Securities for Sinking Fund. Not less than
30 days before each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee a certificate signed by the
Treasurer or any Assistant Treasurer of the Company specifying the amount
of the next ensuing sinking fund payment for such series pursuant to the
terms of such series, the portion thereof, if any, which is to be satisfied
by payment of cash in the currency or currency unit in which the Securities
of such series, and the Coupons, if any,
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appertaining thereto, are payable (except as otherwise specified as
contemplated by Section 3.1 for the Securities of such series and except as
provided in Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture) and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of such series pursuant to Section 5.2, and whether
the Company intends to exercise its rights to make a permitted optional
sinking fund payment with respect to such series. Such certificate shall
be irrevocable and upon its delivery the Company shall be obligated to make
the cash payment or payments (in the currency or currency unit described
above) therein referred to, if any, on or before the next succeeding
sinking fund payment date. If the Company fails to deliver such
certificate (or to deliver the Securities and Coupons, if any, specified in
such certificate), the sinking fund payment due on the next succeeding
sinking fund payment date for such series shall be paid entirely in cash
(in the currency or currency unit described above) and shall be sufficient
to redeem the principal amount of the Securities of such series subject to
a mandatory sinking fund payment without the right to deliver or credit
Securities as provided in Section 5.2 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash (in the currency or currency unit described above), plus any unused
balance of any preceding sinking fund payments made with respect to the
Securities of any particular series, shall be applied by the Trustee (or by
the Company if the Company is acting as its own Paying Agent) on the
sinking fund payment date on which such payment is made (or, if such
payment is made before a sinking fund payment date, on the sinking fund
payment date following the date of such payment) to the redemption of
Securities of such series at the Redemption Price specified in such
Securities with respect to the sinking fund, together with accrued
interest, if any, to the applicable Redemption Date. Any sinking fund
moneys not so applied or allocated by the Trustee (or by the Company if the
Company is acting as its own Paying Agent) to the redemption of Securities
shall be added to the next sinking fund payment received by the Trustee (or
if the Company is acting as its own Paying Agent, segregated and held in
trust as provided in Section 6.2(7)) for such series and, together with
such payment (or such amount so segregated) shall be applied in accordance
with the provisions of this Section 5.3. Any and all sinking fund moneys
with respect to the Securities of any particular series held by the Trustee
(or if the Company is acting as its own Paying Agent, segregated and held
in trust as provided in Section 6.2(7)) on the last sinking fund payment
date with respect to Securities of such series and not held for the payment
of redemption of particular Securities of such series shall be applied by
the Trustee (or by the Company if the Company is acting as its own Paying
Agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for the purpose, to the payment of the principal of
the Securities of such series at
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maturity. The Trustee shall not convert any currency or currency unit in
which the Securities of such series are payable for the purposes of such
sinking fund application unless specifically requested to do so by the
Company, and any such conversion agreed to by the Trustee in response to
such request shall be for the account and at the expense of the Company and
shall not affect the Company's obligation to pay the Holders in the
currency or currency unit to which such Holders may be entitled.
The Trustee shall select or cause to be selected the Securities to be
redeemed upon such sinking fund payment date in the manner specified in the
last paragraph of Section 4.2 and the Company, or the Trustee on behalf of
the Company, shall cause notice of the redemption thereof to be given in
the manner provided in Section 4.2, except that the notice of redemption
shall also state that the Securities are being redeemed by operation of the
sinking fund and whether the sinking fund payment is mandatory or optional,
or both, as the case may be. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Section 4.3.
On or before (but at least one Business Day before, in the case of
payments made in a currency or currency unit other than Dollars) each
sinking fund payment date, the Company shall pay to the Trustee (or, if the
Company is acting as its own Paying Agent, will segregate and hold in trust
as provided in Section 6.2(7)) in cash (in the currency or currency unit
described in the first paragraph of this Section 5.3) a sum equal to the
principal and any interest accrued to the Redemption Date for Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant
to this Section.
Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any
Securities of such series or of any Event of Default (other than an Event
of Default occurring as a consequence of this paragraph) with respect to
the Securities of such series. If, however, the notice of redemption shall
have been provided in accordance with the provisions hereof, the Trustee
(or the Company if the Company is acting as its own Paying Agent) shall
redeem such Securities if cash (in currency or currency unit described in
the first paragraph of this Section 5.3) sufficient for that purpose shall
be deposited with the Trustee (or segregated by the Company) for that
purpose in accordance with the terms of this Article. Except as provided
in the immediately preceding sentence, any moneys (in the currency or
currency unit described in the first paragraph of this Section 5.3) in the
sinking fund for such series at the time when any such default or Event of
Default shall occur and any moneys (in the currency or currency
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unit described in the first paragraph of this Section 5.3) thereafter paid
into such sinking fund shall, during the continuance of such default or
Event of Default, be held as security for the payment of the Securities of
such series and the Coupons, if any, appertaining thereto. Notwithstanding
the foregoing, if such Event of Default or default shall have been cured or
waived as provided herein, such moneys (in the currency or currency unit
described in the first paragraph of this Section 5.3) shall thereafter be
applied on the next sinking fund payment date for the Securities of such
series on which such moneys may be applied pursuant to the provisions of
this Section.
ARTICLE 6
CERTAIN COVENANTS OF THE COMPANY
The Company covenants and agrees for the benefit of each series of
Securities that on and after the date of execution of this Indenture and so
long as any of the Securities of such series remain Outstanding:
Section 6.1 Payment of Securities. The Company will duly and
punctually pay or cause to be paid (in the currency or currency unit in
which the Securities of such series and Coupons, if any, appertaining
thereto are payable, except as otherwise specified as contemplated by
Section 3.1 for the Securities of such series and except as provided in
Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture) the principal of,
and the premium and interest, if any, on, the Securities of such series at
the times and places and in the manner provided in such Securities, any
Coupons appertaining thereto, and in this Indenture.
The interest on Coupon Securities shall be payable only upon
presentation and surrender of the Coupons for such interest installments as
they mature. The interest, if any, on any temporary Unregistered Security
shall be paid, as to any interest evidenced by a Coupon attached thereto,
if any, only upon presentation and surrender of such Coupon, and, as to
other installments of interest, if any, only upon presentation of such
Security for notation thereon of the payment of such interest.
Section 6.2 Other Covenants.
(1) Office or Agency. The Company will maintain an office or agency
where Registered Securities of such series may be presented or surrendered
for payment, where Securities of such series may be surrendered for
registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of such series and this
Indenture may be served, which office or agency shall initially be the
Corporate Trust Office of the Trustee. So long as any Coupon
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Securities or Unregistered Securities of any series remain Outstanding, the
Company will (except as specified pursuant to Section 3.1 or Section
12.1(e)) maintain one or more offices or agencies outside the United States
in such city or cities as may be specified elsewhere in this Indenture or
as contemplated by Section 3.1, with respect to such series where Coupons
appertaining to Securities of such series or Unregistered Securities of
such series may be surrendered or presented for payment, or surrendered for
exchange pursuant to Section 3.5 and where notices and demands to or upon
the Company in respect of Coupons appertaining to Securities of such series
or the Unregistered Securities of such series or of this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If
at any time the Company shall fail to maintain such required office or
agency or shall fail to furnish the Trustee with the address thereof,
presentations, surrenders, notices and demands in respect of Registered
Securities may be made or served at the Corporate Trust Office of the
Trustee and the corporate trust office of any Authenticating Agent
appointed hereunder, and presentations, surrenders, notices and demands in
respect of Coupons appertaining to Securities of any series and
Unregistered Securities may be made or served at the corporate trust office
of the Trustee in the other city or cities referred to above; and the
Company hereby appoints the Trustee and any Authenticating Agent appointed
hereunder its agents to receive all such presentations, surrenders, notices
and demands. The Company may also from time to time designate one or more
other offices or agencies where the Securities of such series may be
presented or surrendered for any or all of such purposes, and may from time
to time rescind such designation.
(2) Maintenance of Corporate Existence. The Company will at all
times take or cause to be taken all such action as may from time to time be
necessary to maintain, preserve or renew its corporate existence; provided,
however, that nothing in this Section 6.2(2) shall prevent any merger or
consolidation permitted by Section 6.2(3).
(3) Consolidations, Mergers, etc. The Company will not lease, sell,
transfer or otherwise dispose of all or substantially all of its assets to,
or consolidate with, or merge into, any other person, firm or corporation,
or permit any other person, firm or corporation to merge into the Company,
unless the person, firm or corporation to which such assets shall have been
leased, sold, transferred or otherwise disposed of or the corporation
formed by such consolidation or the corporation into which the Company
shall have been merged, as the case may be (any such person, firm or
corporation, other than the Company, being herein called the "New
Company"), shall expressly assume the due and punctual payment of the
principal of, and premium and interest, if any, on, all of the Securities
of each series and the due and punctual performance of all of the covenants
and conditions of the Indenture and the Securities of each series,
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and unless immediately after any such transaction, no default shall exist
in the performance of any of the covenants and conditions of the Indenture
or the Securities of any series. In case of any such consolidation,
merger, sale or conveyance and upon any such assumption by the New Company,
the New Company shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the Company and the
predecessor corporation shall be relieved of any further obligation under
the Indenture.
(4) Other Instruments, etc. The Company, from time to time, upon the
written request of the Trustee (which the Trustee, subject to Section 9.1,
shall be under no obligation to make), will execute, acknowledge and
deliver all such further and additional instruments and take all such
further action as may be reasonable or may be required to carry out the
intention of the Indenture, and to provide for the payment of the
Securities of each series, according to the intent and purposes expressed
in the Indenture and in the Securities of such series.
(5) Permit No Vacancy in Office of Trustee. The Company, whenever
necessary to avoid or fill a vacancy in the office of the Trustee, will
appoint a Trustee in the manner provided in Section 9.9, so that there
shall be at all times a Trustee with respect to each series of Securities
hereunder.
(6) Agreement with Paying Agent. If the Company shall appoint a
Paying Agent other than the Trustee with respect to the Securities of any
series, the Company will cause such Paying Agent to execute and deliver to
the Trustee, an instrument in which such Paying Agent shall agree with the
Trustee subject to the provisions of Section 6.2(7):
(a) that it will hold all sums held by it as such Paying
Agent for the payment of the principal of, and premium or
interest, if any, on, the Securities of such series (whether such
sums have been paid to it by the Company or by any other obligor
on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series, and the Coupons, if
any, appertaining thereto or for the benefit of the Trustee;
(b) that it will give the Trustee notice of any default by
the Company (or by any other obligor on the Securities of such
series) in the making of any payment of the principal of, or
premium or interest, if any, on, the Securities of such series
when the same shall be due and payable; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, pay promptly to the
Trustee all sums so held in trust by such Paying Agent.
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(7) Money for Securities Payments To Be Held in Trust. The Company,
if it shall act as its own Paying Agent with respect to the Securities of
any series, on or before the due date of the principal of, or premium or
interest, if any, on, the Securities of such series or the Coupons, if any,
appertaining thereto, will set aside, segregate and hold in trust for the
benefit of the Holders of the Securities of such series and the Coupons, if
any, appertaining thereto, or for the benefit of the Trustee, a sum (in the
currency or currency unit in which the Securities of such series are
denominated, except as otherwise specified as contemplated by Section 3.1
for the Securities of such series and except as provided in Sections
3.11(b), 3.11(e) and 3.11(f) of this Indenture) sufficient to pay such
principal, premium, if any, or interest, if any, so becoming due and will
notify the Trustee of such action, or any failure (by it or any other
obligor on the Securities of such series and the Coupons, if any,
appertaining thereto) to take such action.
Whenever the Company shall have one or more Paying Agents with respect
to the Securities of any series, it will, before the due date of the
principal of, or premium or interest, if any, on, the Securities of such
series or the Coupons, if any, appertaining thereto, deposit with a
designated Paying Agent a sum (in the currency or currency unit described
in the preceding paragraph) sufficient to pay the principal, premium, if
any, or interest, if any, so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium, if any, or
interest, if any, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee at its Corporate Trust Office of its
failure so to act, provided that, anything in Subdivisions (6) and (7) of
this Section 6.2 to the contrary notwithstanding, the agreement to hold
sums in trust as provided therein is subject to the provisions of Section
13.4.
(8) Compliance Reports. The Company will, not less than annually
following the first date of issuance of any series of Securities under this
Indenture, file with the Trustee, a certificate of the principal executive
officer, a principal financial officer or a principal accounting officer of
the Company, stating whether or not, to the knowledge of the signer, the
Company has complied with all conditions or covenants on its part contained
in this Indenture, or if the signer has obtained knowledge of any default
by the Company in the performance, observance, or fulfillment of any such
condition or covenant, specifying each such default and the nature thereof
(provided that, for purposes of this subsection (b), compliance shall be
determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture).
Section 6.3 Waiver. The observance of any provision of this
Article 6 (except Section 6.1, subsections (5), (6) and (7)
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of Section 6.2 and Section 6.3) may be waived with respect to any series of
the Securities (either generally or in a particular instance and either
before or after the time for such observance) if the Company shall have
obtained the consent of the holders of at least a majority in aggregate
principal amount of all Outstanding Securities of such series.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 7.1 Semiannual Lists of Holders. The Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee for the
Securities of each series (i) semiannually, not more than 15 days after
each record date for the payment of interest, if any, in respect of
Securities of such series and on dates in each year to be determined
pursuant to Section 3.1 if the Securities of such series do not bear
interest, and (ii) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of the Registered Securities of such series, as of
the record dates therefor (and on dates to be determined pursuant to
Section 3.1 if the Securities of such series do not bear interest);
provided, however, that no such list need be furnished so long as the
Trustee is the Securities Registrar for such series. Any such list may be
dated as of a date not more than 15 days before the time such information
is furnished or caused to be furnished and need not include information
received after such date. The Company shall also be required to furnish
such information known to it concerning the Holders of Coupons and
Unregistered Securities. Notwithstanding the foregoing, the Company shall
have no obligation to investigate any matter relating to any Holder of an
Unregistered Security or any Holder of a Coupon.
Section 7.2 Preservation of Information. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of Securities of
each series (1) contained in the most recent list furnished to it as
provided in Section 7.1, (2) received by it in the capacity of Paying Agent
for such series (if so acting) hereunder and of Securities Registrar for
such series, and (3) filed with it within two preceding years pursuant to
the provisions of paragraph (2) of subsection (c) of Section 7.4.
The Trustee for any series of the Securities may (1) destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished, (2) destroy any information received by it as Paying Agent for
such series (if so acting) hereunder upon delivering to itself as Trustee a
list containing the names and addresses of the Holders of Securities
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of such series obtained from such information since the delivery of the
next previous list, if any, (3) destroy any list delivered to itself as
Trustee that was compiled from information received by it as Paying Agent
(if so acting) hereunder upon the receipt of a new list so delivered, and
(4) destroy any information filed with it by Holders of Securities of such
series for the purpose of receiving reports pursuant to the provisions of
paragraph (2) of subsection (c) of Section 7.4, but not until two years
after such information has been filed with it.
(b) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee for such
series, and furnish to the Trustee reasonable proof that each such
applicant has owned a Security of such series for a period of at least six
months preceding the date of such application, and such application states
that the applicants desire to communicate with other Holders of Securities
of such series or with Holders of Securities of all series for which the
Trustee is serving as Trustee with respect to their rights under this
Indenture or under such Securities, and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the
receipt of such application, at its election, either
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 7.2, or
(2) inform such applicants as to the approximate number of
Holders of Securities of such series or of all series, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee, in accordance with the
provisions of subsection (a) of this Section 7.2, and as to the
approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or all Holders
of Securities of series for which it is Trustee, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this
Section 7.2, a copy of the form of proxy or other communication that is
specified in such request. The Trustee shall mail such copies with
reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable
expenses of mailing, unless within five days after such tender, the Trustee
shall mail to
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such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best interest
of the Holders of Securities of such series or of the Holders of Securities
of all series for which it is Trustee, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statements so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all Holders of
Securities of such series or to all Holders of Securities of all series for
which it is Trustee, as the case may be, with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each Holder of the Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Paying Agent shall be held accountable by reason of the
disclosure of any information as to the names or addresses of the Holders
of Securities in accordance with the provisions of subsection (b) of this
Section 7.2, regardless of the source from which such information was
derived, or that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made thereunder.
Section 7.3 Periodic Reports by Company. (a) The Company covenants
and agrees to file with the Trustee for each series of the Securities,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules or regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended. If the Company is not required to file such information,
documents or reports pursuant to either of such sections, then the Company
shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, the
supplementary or periodic information, documents or reports that may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed or registered on a national
securities exchange prescribed from time to time in such rules and
regulations.
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(b) The Company covenants and agrees to file with the Trustee for
each series of the Securities and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission,
additional information, documents and reports with respect to compliance by
the Company with the conditions or covenants provided for in this Indenture
required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit to all Holders of
Securities within 30 days after the filing thereof with the Trustee for
each series of the Securities, in the manner and to the extent provided in
subsection (c) of Section 7.4 with respect to reports pursuant to
subsection (a) of Section 7.4, summaries of any information, documents or
reports filed by the Company pursuant to subsection (a) or (b) of this
Section 7.3 as may be required by rules and regulations prescribed from
time to time by the Commission.
Section 7.4 Trustee's Reports to Holders. (a) Within 60 days after
the first January 1 that is not less than 60 days after the first issuance
of Securities of any series under this Indenture, and within 60 days after
each subsequent January 1, so long as any Securities are Outstanding
hereunder, the Trustee for each series of the Securities shall transmit to
all Holders of Securities of such series as hereinafter provided in this
Section 7.4 a brief report with respect to any of the following events that
may have occurred during the 12 months preceding the date of such report
(but if no such event has occurred within such period, no report need be
transmitted):
(1) any change to its eligibility under Section 9.8, and
its qualifications under Section 9.7, or in lieu thereof, if to
the best of its knowledge, it has continued to be eligible and
qualified under such Sections, a written statement to such
effect;
(2) the creation of or any material change to a
relationship specified in Sections 310(b)(1) through Section
310(b)(10) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain unpaid
on the date of such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Securities of any series, on any property or funds held or
collected by it as Trustee if the aggregate of such advances so
remaining unpaid equal more than one-half of 1% of the principal
amount of the Securities of any series Outstanding on the date of
such report;
(4) any change to the amount, interest rate or maturity
date of all other indebtedness owing by the
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Company (or by any other obligor on the Securities of any series) to
the Trustee in its individual capacity, on the date of such report,
with a brief description of any property held as collateral security
therefor, except an indebtedness based upon a creditor relationship
arising in any manner described in paragraphs (2), (3), (4) or (6) of
subsection (b) of Section 9.12;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date
of such report;
(6) any additional issue of Securities of any series for
which it is Trustee which the Trustee has not previously
reported; and
(7) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously
reported and which in its opinion materially affects the
Securities of any series, except action in respect of a default,
notice of which has been or is to be withheld by it in accordance
with the provisions of Section 8.9.
(b) The Trustee for each series of the Securities shall transmit to
all Holders of Securities of such series, as hereinafter provided, a brief
report with respect to the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee as such since the date of the last report
transmitted pursuant to the provisions of subsection 7.4(a) (or if no such
report has yet been so transmitted, since the date of execution of this
Indenture), for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities of any series, on property or funds
held or collected by it as Trustee, and which it has not previously
reported pursuant to this subsection, if such advances remaining unpaid at
any time aggregate more than 10% of the principal amount of Securities of
such series Outstanding at such time. Such report shall be transmitted
within 90 days after such time.
(c) Reports pursuant to this Section 7.4 shall be transmitted by
mail:
(1) to all registered Holders of Registered Securities, as
the names and addresses of such Holders appear in the applicable
Securities Register;
(2) to the Holders of Securities of any series that have,
within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose;
and
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(3) except in the cases of reports pursuant to
subsection (b) of this Section 7.4, to each Holder of a Security
of any series whose name and address is preserved at the time by
the Trustee for such series, as provided in subsection (a) of
Section 7.2.
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities of any series, be filed by the
Trustee for such series with each stock exchange upon which such Securities
are listed and also with the Commission. The Company agrees to notify the
Trustee for each series when and as any Securities become listed on any
stock exchange.
Section 7.5 Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 6.2(8)) shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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ARTICLE 8
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
Section 8.1 Events of Default. "Event of Default," whenever used
herein with respect to Securities of any series, means any one of the
following events and such other events as may be established with respect
to the Securities of such series as contemplated by Section 3.1 hereof
(whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article 15 or 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), continued for the period of time, if any, and after
the giving of notice, if any, designated herein or therein, as the case may
be, unless such event is either inapplicable to a particular series or it
is specifically deleted or modified in the applicable resolution of the
Board of Directors or in the supplemental indenture under which such series
of Securities is issued, as the case may be, as contemplated by
Section 3.1:
(1) a default shall occur in the punctual payment of the
principal of and premium, if any, on any Security of such series
when and as the same shall become due and payable, at its
maturity, or a default shall occur in the making or satisfaction
of any sinking fund payment or analogous obligation as and when
the same shall become due and payable by the terms of the
Securities of such series;
(2) a default shall occur in the payment of any installment
of interest on any Security of such series as and when the same
shall become due and payable, and such default shall continue for
30 days;
(3) a default shall occur in the due observance or
performance in any material respect of any other covenant,
condition or agreement on the part of the Company in respect of
the Securities of such series contained in this Indenture (other
than a covenant or agreement in respect of the Securities of such
series a default in whose observance is specifically dealt with
elsewhere in this Section), and any such default shall continue
for 90 days after written notice thereof, specifying such default
and requiring the same to be remedied, shall have been given to
the Company by the Trustee for such series, which may, in its
discretion, give such notice and shall do so at the request
pursuant to Section 10.1 of the Holders of at least 25% in
principal amount of the Securities of such series at the time
Outstanding;
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(4) by the order of a court of competent jurisdiction, a
receiver or liquidator or trustee of the Company or of any of the
property of the Company shall be appointed and such receiver or
liquidator or trustee shall not have been discharged within a
period of 120 days, or, by decree of such a court, the Company
shall have been adjudicated bankrupt or insolvent or any
substantial part of the property of the Company shall have been
sequestered and such decree shall have continued undischarged and
unstayed for a period of 120 days after the entry thereof, or a
petition to declare bankrupt or to reorganize the Company
pursuant to any provision of the federal Bankruptcy Code, or
pursuant to any other similar statute applicable to the Company,
as now or hereafter in effect, shall be filed against the Company
(and, in the case of any such petition filed pursuant to any
provision of a statute which requires the approval of such
petition by a court, shall be approved by such a court) and shall
not be dismissed within 120 days after such filing;
(5) the Company shall file a petition in voluntary
bankruptcy under any provision of any bankruptcy law or shall
consent to the filing of any bankruptcy or reorganization
petition against it under any similar law, or (without limitation
of the generality of the foregoing) the Company shall file a
petition or answer or consent seeking relief or assisting in
seeking relief for the Company in a proceeding under any of the
provisions of the federal Bankruptcy Code, or pursuant to any
other similar statute applicable to the Company, as now or
hereafter in effect, or an answer admitting the material
allegations of a petition filed against it in such a proceeding,
or the Company or its directors or stockholders shall take action
seeking the dissolution or liquidation of the Company (except in
connection with a consolidation, merger, sale or conveyance
pursuant to Article 6 hereof), or the Company shall make an
assignment for the benefit of its creditors, or shall admit in
writing its inability to pay its debts generally as they become
due, or shall consent to the appointment of a receiver or
receivers, or trustee or trustees, or liquidator or liquidators,
of it or of all or any part of its property; or
(6) any other Event of Default provided in the applicable
resolution of the Board of Directors or in the supplemental
indenture under which such series of Securities is issued, as the
case may be, as contemplated by Section 3.1.
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If an Event of Default with respect to Securities of any series at the
time Outstanding shall have occurred and be continuing, then and in each
and every such case, unless the principal of all the Securities of such
series shall have already become due and payable, either the Trustee for
such series or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by the
Holders), may declare the principal amount (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all
the Securities of such series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, notwithstanding anything contained to the contrary in this
Indenture or in the Securities of such series. The provisions of the
foregoing sentence, however, are subject to the condition that if, at any
time after the principal amount (or if the Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) of the Securities of any
series shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the following events shall occur:
(a) the Company shall pay or shall deposit with the Trustee
for such series a sum sufficient to pay in the currency or
currency unit in which the Securities of such series are payable
(except as otherwise specified as contemplated by Section 3.1 for
the Securities of such series and except as provided in Sections
3.11(b), 3.11(e) and 3.11(f) of this Indenture):
(i) all matured installments of interest, if any, upon
all the Securities of such series,
(ii) the principal of, and premium, if any, on, all
Securities of such series that shall have become due
otherwise than by acceleration (with interest on such
principal and premium, if any, and, if payment of the same
is enforceable under applicable law, on overdue installments
of interest, at the Overdue Rate or Yield to Maturity (in
the case of Original Issue Discount Securities) applicable
to such series to the date of such payment or deposit), and
(iii) all amounts payable to the Trustee pursuant to
Section 9.6; and
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(b) any and all defaults under this Indenture with respect
to such series of Securities, other than the nonpayment of
principal of and accrued interest on Securities of such series
that shall have become due by acceleration, shall have been
remedied, cured or waived, or provision shall have been made
therefor to the satisfaction of the Trustee;
then and in every such case, the Holders of a majority in aggregate
principal amount of the Securities of such series then Outstanding, by
written notice to the Company and to the Trustee, may waive all defaults
and its consequences; but no such waiver shall extend to or shall affect
any subsequent default, or shall impair any right consequent thereon.
If the Trustee shall have proceeded to enforce any right under this
Indenture or such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case
the Company and the Trustee shall be restored to their several positions
and rights hereunder, and all rights, remedies and powers of the Company
and the Trustee shall continue as though no such proceedings had been
taken.
Section 8.2 Collection of Indebtedness by Trustee. The Company
covenants that if:
(a) default shall occur in payment of any installment of
interest on any Security of any series, and such default shall
have continued for a period of 30 days,
(b) default shall occur in the payment of the principal of,
or premium, if any, on, any Security of any series upon maturity
of the Securities of that series, or
(c) default shall occur in the making or satisfaction of
any sinking fund payment or analogous obligation when the same
becomes due by the terms of the Securities of any series,
then, upon demand of the Trustee for such series, the Company will pay to
the Trustee, for the benefit of the Holder of any such Security (or Holders
of any such series of Securities in the case of clause (c) above) and the
Holders of any Coupons appertaining thereto the whole amount that then
shall have become due and payable on any such Security (or Securities of
any such series in the case of clause (c) above) and matured Coupons, if
any, appertaining thereto for the principal, premium, if any, and interest,
if any, with interest upon the overdue principal and premium, if any, and,
as far as payment of the same is enforceable under applicable law, on
overdue
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installments of interest, at the Overdue Rate or Yield to Maturity (in the
case of Original Issue Discount Securities) applicable to any such Security
(or Securities of any such series in the case of clause (c) above); and, in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and any further amounts payable to the
Trustee pursuant to the provisions of Section 9.6.
If the Company shall fail to pay such amounts upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid and may prosecute
any such action or proceeding to judgment or final decree, and may enforce
any such judgment or final decree against the Company or any other obligor
on such Security (or Securities of any such series in the case of
clause (c) above) and Coupons and collect in the manner provided by law out
of the property of the Company or any other obligor on such Security (or
Securities of any such series in the case of clause (c) above) and Coupons
wherever situated the moneys adjudged or decreed to be payable.
The Trustee for any series of the Securities shall be entitled and
empowered, either in its own name as trustee of an express trust, or as
attorney-in-fact for the Holders of any of the Securities of such series
and for the Holders of any Coupons appertaining thereto, or in both such
capacities, to file such proof of debt, amendment of proof of debt, claim,
petition or other document as may be necessary or advisable in order to
have the claims of the Trustee and of the Holders of the Securities of such
series and the Holders of any Coupons appertaining thereto allowed in any
equity receivership, insolvency, bankruptcy, liquidation, readjustment,
reorganization or other similar proceedings, or any judicial proceedings,
relative to the Company or any other obligor on the Securities of such
series and any Coupons appertaining thereto or to its creditors or its
property. The Trustee for each series of the Securities is hereby
irrevocably appointed (and the successive Holders of the Securities of such
series and the Holders of any Coupons appertaining thereto, by taking and
holding the same, shall be conclusively deemed to have so appointed the
Trustee) the true and lawful attorney-in-fact of the Holders of the
Securities of such series and the Holders of any Coupons appertaining
thereto, with authority to make or file in the names of the Holders of the
Securities of such series and the Holders of any Coupons appertaining
thereto or on behalf of all the Holders of Securities of all series and the
Holders of any Coupons appertaining thereto for which it is Trustee, any
proof of debt, amendment of proof of debt, claim, petition or other
document in any such proceedings and to receive payment of any sums
becoming distributable on account thereof, and to execute any other papers
and documents and do and perform any and all acts and things for or on
behalf of such Holders of Securities of such
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series and the Holders of any Coupons appertaining thereto, as may be
necessary or advisable in the opinion of the Trustee in order to have the
claims of the Holders of the Securities of such series and the Holders of
any Coupons appertaining thereto against the Company or any other obligor
on the Securities of such series and any Coupons appertaining thereto
and/or its property allowed in any such proceedings, and to receive payment
of or on account of such claims. Nothing herein contained, however, shall
be deemed to authorize or empower the Trustee to consent to or accept or
adopt, on behalf of any Holder of Securities of any series or any Holder of
any Coupons appertaining thereto, any plan of reorganization or
readjustment of the Company or any other obligor on the Securities of any
series and any Coupons appertaining thereto, or, by other action of any
character in any such proceeding, to waive or change in any way any right
of any Holder of any Security of any series or any Holder of any Coupons
appertaining thereto even though it may otherwise be entitled so to do
under any present or future law.
All rights of action and of asserting claims under this Indenture, or
under the Securities of any series or any Coupons appertaining thereto, may
be enforced by the Trustee for such series without the possession of any of
the Securities of such series or any Coupons appertaining thereto, or the
production thereof on any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall be for the ratable benefit of the Holders of the Securities or
Coupons in respect of which such action was taken.
Section 8.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee for the Securities of any series under or pursuant
to, or as authorized or permitted by, this Article 8, together with any
other sums held by the Trustee (as such) hereunder (other than sums held in
trust for the benefit of the Holders of particular Securities or Coupons),
shall be applied as follows at the date fixed by the Trustee for
distribution of such moneys, upon presentation (except in respect of
subdivision FIRST below) of the several Securities and any Coupons
appertaining thereto with respect to which such moneys were collected, and
stamping thereon of an appropriate legend respecting the payment, if only
partially paid, or upon the surrender thereof, if fully paid:
FIRST: To the payment of all amounts due the Trustee
pursuant to the provisions of Section 9.6;
SECOND: If the principal of such Outstanding Securities
shall not have become due and shall not be unpaid, to the payment
of the interest, if any, on the Securities of such series in the
order of maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by
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the Trustee), so far as it may be enforceable under applicable law,
upon the overdue installments at the Overdue Rate or Yield to Maturity
(in the case of Original Issue Discount Securities) applicable to such
series, such payments to be made ratably to the persons entitled
thereto without discrimination or preference;
THIRD: If the principal of such Outstanding Securities
shall have become due by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of
such series for principal, premium, if any, and interest, if any,
with interest upon any overdue principal and premium, if any, and
also (to the extent that such interest has been collected by the
Trustee), so far as payment of the same is enforceable under
applicable law, upon any overdue installments of interest, if
any, at the Overdue Rate or Yield to Maturity (in the case of
Original Issue Discount Securities) applicable to such series;
and, if such moneys shall be insufficient to pay in full the
whole amount so due and unpaid upon the Securities of such series
then to the payment of such principal, premium, if any, and
interest, if any, without preference or priority of principal,
and premium, if any, over interest, or of interest, if any, over
principal, and premium, if any, or of any installment of
interest, if any, over any other installment of interest, if any,
or of any Security of such series over any other Security of such
series, or of any Coupon appertaining thereto over any other
Coupon appertaining thereto, ratably to the aggregate of such
principal, premium, if any, and interest, if any;
FOURTH: To the payment of all other amounts payable by the
Company under the terms of this Indenture; and
FIFTH: To the payment of the surplus, if any, to the
Company, its successors or assigns or to whosoever may be
lawfully entitled to receive the same, or as a court of competent
jurisdiction may direct.
Section 8.4 Limitation on Suits on Indenture; No Limitation on Suits
on Securities. No Holder of any Security of any series or Holder of any
Coupons appertaining thereto shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee (or other similar
official), or for any other remedy hereunder, unless an Event of Default
shall have occurred and be continuing and such Holder previously shall have
given to the Trustee for such
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series written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such series then
Outstanding shall have made written request upon the Trustee for such
series to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be incurred therein or thereby, and the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It
is understood and intended, and shall be expressly covenanted by the taker
and Holder of every Security and by the taker and Holder of any Coupon
appertaining thereto with every other taker and Holder of any Security and
of any Coupon appertaining thereto and the Trustee for the Securities of
each series, that no one or more Holders of Securities of any series or of
any Coupons appertaining thereto shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder of Securities
of such series or of any Coupons appertaining thereto, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to
enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities of such series or of any Coupons appertaining thereto. For the
protection and enforcement of the provisions of this Section 8.4, each
Holder of Securities of any series or of any Coupons appertaining thereto
and the Trustee for such series shall be entitled to such relief as can be
given either at law or in equity.
Nothing contained in this Indenture, in the Securities of any series,
or in any Coupon appertaining thereto, shall affect or impair the
obligation of the Company, which is unconditional and absolute, to pay the
principal of, and premium or interest, if any, on, the Securities of such
series at the places, times and rates, in the amounts and in the coin,
currency or currency unit therein and herein prescribed or affect or impair
the right of action, which is also absolute and unconditional, of any
Holder of any Security or Coupon, if any, to institute suit to enforce such
payment at the due dates expressed in such Security or Coupon, if any,
unless such Holder consents thereto.
Section 8.5 Remedies Cumulative; Delay Not To Impair Rights. All
powers and remedies given by this Article 8 to the Trustee for any series
of the Securities or to the Holders of such Securities or any Coupons
appertaining thereto shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders of such Securities or any
Coupons appertaining thereto by judicial proceedings or otherwise to
enforce the performance or observance of the covenants and agreements
contained in this Indenture. No delay
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or omission of the Trustee or of any Holder of any of the Securities of
such series or any Coupons appertaining thereto to exercise any right or
power accruing upon any default shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein. Subject to the provisions of Section 8.4, every power and remedy
given by this Article 8 or by law to the Trustee for any series of the
Securities or to Holders of the Securities of such series or any Coupons
appertaining thereto may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee for such series or by Holders of
such Securities or any Coupons appertaining thereto. No waiver of any
default hereunder shall extend to or affect any other or subsequent default
or impair any rights or remedies consequent thereon.
Section 8.6 Directions by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of any series at
the time Outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
for such series or exercising any trust or power conferred on the Trustee.
Section 8.7 Undertakings for Costs. All parties to this Indenture
agree and each Holder of any Security and each Holder of any Coupon by his
acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or any suit against the Trustee for the
Securities of any series for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant. The provisions of this
Section 8.7, however, shall not apply to any suit instituted by the Trustee
for the Securities of any series, to any suit instituted by any Holder of
Securities of any series, or group of such Holders holding in the aggregate
more than 10% in aggregate principal amount of the Outstanding Securities
of such series, or any suit instituted by any Holder of Securities or
Coupons for the enforcement of the payment of the principal of, or premium
or interest, if any, on, any Security or Coupon on or after the due date
expressed in such Security or Coupon, on or after the date fixed for
redemption or after such Security or Coupons shall have become due by
declaration.
Section 8.8 Judgment Currency. If, for the purpose of obtaining a
judgment in any court with respect to any obligation of the Company
hereunder or under any Security or Coupon, it shall become necessary to
convert into any other currency or currency unit any amount in the currency
or currency unit due hereunder or under such Security or Coupon, then such
conversion
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shall be made at the Conversion Rate as in effect on the date the Company
shall make payment to any Person in satisfaction of such judgment. If
pursuant to any such judgment, conversion shall be made on a date other
than the date payment is made and there shall occur a change between such
Conversion Rate and the Conversion Rate as in effect on the date of
payment, the Company agrees to pay such additional amounts (if any) as may
be necessary to ensure that the amount paid is the amount in such other
currency or currency unit which, when converted at the Conversion Rate as
in effect on the date of payment or distribution, is the amount then due
hereunder or under such Security or Coupon. Any amount due from the
Company under this Section 8.8 shall be due as a separate debt and is not
to be affected by or merged into any judgment being obtained for any other
sums due hereunder or in respect of any Security or Coupon. In no event,
however, shall the Company be required to pay more in the currency or
currency unit due hereunder or under such Security or Coupon at the
Conversion Rate as in effect when payment is made than the amount of
currency or currency unit stated to be due hereunder or under such Security
or Coupon so that in any event the Company's obligations hereunder or under
such Security or Coupon will be effectively maintained as obligations in
such currency or currency unit.
For purposes of this Section 8.8, "Conversion Rate" shall mean the
spot rate at which, in accordance with the normal banking procedures, the
currency or currency unit into which an amount due hereunder or under any
Security or Coupon is to be converted could be purchased with the currency
or currency unit due hereunder or under any Security or Coupon from major
banks located in the United States or any other principal market for such
purchased currency or currency unit.
Section 8.9 Notice of Default. Within 90 days after the occurrence
of a default hereunder with respect to the Securities of any series, the
Trustee for such series shall transmit by mail to all Holders of Securities
of such series, in the manner and to the extent provided in Section 7.4(c),
and give to all Holders of Securities of such series and of Coupons, if
any, appertaining thereto as otherwise provided in Section 14.3, notice of
such default hereunder with respect to such series known to the Trustee,
unless such default shall have been cured or waived. Notwithstanding the
foregoing, except in the case of a default in the payment of the principal
of, or premium or interest, if any, on, any Security of such series or in
the payment of any sinking fund installment or analogous obligation with
respect to such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series and of Coupons, if
any, appertaining thereto. In the case of any default of the character
specified in Section 8.1(3), no such
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notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section 8.9, the terms
"default" means any event that is, or after notice or lapse of time or both
would become, an Event of Default.
ARTICLE 9
CONCERNING THE TRUSTEE
Section 9.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise,
that a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section 9.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee for the Securities of any series shall not
be liable with respect to any action taken
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or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Securities of such series pursuant to
Section 8.6 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with
respect to Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) 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 9.1.
Section 9.2 Certain Rights of Trustee. Except as otherwise provided
in Section 9.1:
(a) the Trustee may rely, and shall be protected in acting or
refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate and any
resolution of the Board of Directors 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 before
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 Officers' Certificate;
(d) the Trustee may consult with counsel, and the written 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 for the Securities of any series shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or
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direction of any of the Holders of Securities of such series pursuant to
this Indenture, unless such Holders of Securities shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
(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 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;
(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; and
(h) the Trustee shall not be liable for any action taken by it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
Section 9.3 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities or Coupons. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 9.4 May Hold Securities. The Trustee, any Paying Agent,
Securities Registrar, Authenticating Agent or any other agent of the
Company or the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities or Coupons and, subject to Section 9.7
and Section 9.12, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Securities Registrar,
Authenticating Agent or such other agent.
Section 9.5 Money Held in Trust. Money in any currency or currency
unit held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 9.6 Compensation and Reimbursement. The Company agrees:
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(1) to pay to the Trustee for the Securities of each series
from time to time reasonable compensation 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 for the Securities of each series upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for the Securities of each
series for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of this trust, 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.
As security for the performance of the obligations of the Company
under this Section 9.6, the Trustee for the Securities of any series shall
have a lien prior to the Securities of all series upon all property and
funds held or collected by the Trustee as such, except funds held in trust
for the payment of principal of, and premium or interest, if any, on,
Securities of any series.
The obligations of the Company under this Section 9.6 to compensate
and indemnify the Trustee and to pay and reimburse the Trustee for
expenses, disbursements and advances shall constitute additional
indebtedness under the Indenture and shall survive the satisfaction and
discharge of this Indenture.
Section 9.7 Disqualification; Conflicting Interests. The Trustee for
the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period
of time provided for therein. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture
Act with respect to the Securities of any series, there shall be excluded
(i) the Trustee's interest under this Indenture with respect to Securities
of any particular series of Securities other than that series and, (ii) any
interest of the Trustee under the Indenture, dated as of May 1, 1985,
between Intel Overseas Corporation, the Company, as Guarantor, and Wachovia
Bank and
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Trust Company, N.A., as Trustee, as amended or supplemented, and the
securities issued thereunder. Nothing herein shall prevent the Trustee
from filing with the Commission the application referred to in Section
310(b) of the Trust Indenture Act.
Section 9.8 Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder for the Securities of each series, which
shall be at all times either:
(1) a corporation organized and doing business under the
laws of the United States or of any state or territory thereof or
the District of Columbia, authorized under such laws to exercise
corporate trust powers and subject to supervision or examination
by federal, state, territory or District of Columbia authority;
or
(2) a corporation or other Person organized and doing
business under the laws of a foreign government that is permitted
to act as Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate
trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees, in either
case having a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition
at least annually, pursuant to law or to requirements of its
supervising or examining authority, then for the purposes of this
Section 9.8, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at
any time the Trustee for the Securities of any series shall cease
to be eligible in accordance with the provisions of this
Section 9.8, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article 9. Neither the
Company nor any Person directly or indirectly controlling,
controlled by or under common control with the Company shall
serve as Trustee for the Securities of any series issued
hereunder.
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Section 9.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of
any series and no appointment of a successor Trustee for such series
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 9.10.
(b) The Trustee, or any trustee or trustees hereafter appointed, for
the Securities of any series may resign at any time with respect to one or
more or all such series of Securities by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee for
Securities of any series shall not have been delivered to the Trustee for
such series within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee for such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of one or more series (each voting as a class) or all series at
the time Outstanding for which the Trustee is serving as Trustee may at any
time remove the Trustee with respect to any or all such series, as the case
may be, and nominate with respect to any or all such series, as the case
may be, a successor Trustee by written notice of such action to the
Company, the Trustee for the applicable series and the nominee successor
Trustee. The nominee Trustee shall be deemed appointed as successor
Trustee with respect to any or all of such series, as the case may be,
unless within 10 days after such nomination the Company objects thereto, in
which case the Trustee so removed or any Holder of Securities of the
applicable series may petition any court of competent jurisdiction for an
appointment of a successor Trustee with respect to such series.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail
to comply with Section 310(b) of the Trust Indenture Act with
respect to such series after written request therefor by the
Company or by any Holder of Securities who has been a bona fide
Holder of a Security or Securities of such series for at least
six months, unless the Trustee's duty to resign is stayed in
accordance with the provisions of Section 310(b) of the Trust
Indenture Act;
(2) the Trustee for the Securities of any series shall
cease to be eligible under Section 9.8 with respect to such
series and shall fail to resign after written request therefor by
the Company or by any Holder of Securities of such series; or
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(3) the Trustee for the Securities of any series shall
become incapable of acting with respect to such series, 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 case, (i) the Company may remove the Trustee with respect to
such series, or (ii) subject to Section 8.7, any Holder who has been a bona
fide Holder of a Security or Securities 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 removal of the Trustee
and the appointment of a successor Trustee for such series.
(e) The Company shall give notice of such resignation and each
removal of the Trustee and each appointment of a successor Trustee for the
Securities of any series by providing notice of such event to the Holders
of Securities of such series in the manner and to the extent provided in
Section 14.3. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office.
Section 9.10 Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company 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 request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property or money held by such retiring Trustee hereunder,
subject nevertheless to its lien, if any, provided for in Section 9.6.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee for the
Securities of one or more (but not all) series, the Company, the
predecessor Trustee and each successor Trustee for the Securities of any
applicable series shall execute and deliver an indenture supplemental
hereto which shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee for the Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be
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vested in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee. Nothing herein or in such supplemental indenture shall constitute
such Trustee's co-trustees of the same trust and 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.
No successor Trustee for a series of Securities shall accept its
appointment unless at the time of such acceptance such successor Trustee
shall with respect to such series be qualified and eligible under this
Article.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.10, the Company shall provided notice of the succession of
such Trustee hereunder to the Holders of Securities of any applicable
series and to the Holders of Coupons, if any, appertaining thereto in the
manner and the extent provided in Section 14.3. If the Company fails to
provide such notice within 10 days after the acceptance of appointment by
the successor Trustee, the successor Trustee shall cause such notice to be
given at the expense of the Company.
Section 9.11 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee for the Securities of any
series 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 of the corporate trust business of the Trustee, shall be
the successor of the Trustee for such series hereunder, provided such
corporation shall, with respect to such series, be otherwise qualified and
eligible under this Article, to the extent operative, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto. If any Securities of one or more series shall have been
authenticated, but not delivered, by the Trustee for such series 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; and if at that time any
of such Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of the Trustee
or such successor to the Trustee.
Section 9.12 Preferential Collection of Claims Against Company.
(a) Subject to subsection (b) of this Section 9.12, if the Trustee
for the Securities of any series shall be or shall
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become a creditor, directly or indirectly, secured or unsecured, of the
Company or any other obligor on the Securities of such series within three
months before a default, as defined in subsection (c) of this Section 9.12,
or after such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold a special account for the
benefit of the Trustee individually, the Holders of the Securities of such
series, the Holders of the Coupons, if any, appertaining thereto and the
holders of other indenture securities (as defined in subsection (c) of this
Section 9.12) the following:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such
three-month period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt
or disposition of any property described in paragraph (2) of this
Section 9.12(a), or from the exercise of any right of setoff
which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the date
of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such three-month period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however,
to the rights, if any, of the Company and its other creditors in
such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the Company)
who is liable thereon, and (ii) the proceeds of the bona fide
sale of any such claim by the Trustee to a third person, and
(iii) distributions made in cash, securities or other property in
respect of claims filed against the Company in bankruptcy or
receivership or in cases or proceedings for reorganization or for
any related or similar purpose pursuant to the federal Bankruptcy
Code or applicable state law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so
held before the beginning of such three-month period;
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(C) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it
as security for any such claim, if such claim was created after
the beginning of such three-month period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving
that at the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in
subsection (c) of this Section 9.12, would occur within three
months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C) above, against the release of any property
held as security for such claim provided in paragraphs (B) or (C)
above, as the case may be, to the extent of the fair value of
such property.
For the purposes of paragraphs (B), (C) and (D) above, property
substituted after the beginning of such three-month period for property
held as security at the time of such substitution shall, to the extent of
the fair value of the property released, have the same status as the
property released, and, to the extent that any claim referred to in any of
such paragraphs is created in renewal of or in substitution for or for the
purpose of repaying or refunding any preexisting claim of the Trustee as
such creditor, such claim shall have the same status as such preexisting
claim.
If the Trustee for the Securities of any series shall be required to
account, the funds and property held in such special account and the
proceeds thereof shall be apportioned among the Trustee, the Holders of the
Securities of such series, the Holders of the Coupons, if any, appertaining
thereto and the holders of other indenture securities in such manner that
the Trustee, such Holders and the holders of other indenture securities
realize, as a result of payments from such special account and payments of
dividends on claims filed against the Company in bankruptcy or receivership
or in cases or proceedings for reorganization or for any related or similar
purpose pursuant to the federal Bankruptcy Code or other applicable federal
or state law, the same percentage of their claims. The percentage referred
to in the preceding sentence shall be determined before crediting to the
claim of the Trustee anything on account of the receipt by it from the
Company of the funds and property in such special account and before
crediting to the claims of the Trustee, the Holders of such Securities, the
Holders of the Coupons, if any, appertaining thereto and the holders of
other indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in cases or proceedings for reorganization or
for any related or similar purpose pursuant to the federal Bankruptcy Code
or other applicable federal or state law, but after crediting thereon
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receipts on account of the indebtedness represented by their claims from
all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect
to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or in cases or
proceedings for reorganization or for any related or similar purpose
pursuant to the federal Bankruptcy Code or other applicable federal or
state law, whether such distribution is made in cash, securities or other
property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or cases or proceedings for reorganization or for
any related or similar purpose is pending shall have jurisdiction (i) to
apportion among the Trustee, the Holders of such Securities, the Holders of
the Coupons, if any, appertaining thereto and the holders of other
indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof,
or (ii) in lieu of such apportionment in whole or in part, to give the
provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee, the Holders of such
Securities, the Holders of the Coupons, if any, appertaining thereto and
the holders of other indenture securities with respect to their claims, in
which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as
security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee that has resigned or been removed with respect to any
series of the Securities after the beginning of such three-month period
shall be subject to the provisions of this subsection with respect to such
series as though such resignation or removal had not occurred. If any
Trustee has so resigned or been removed before the beginning of such three-
month period, it shall be subject to the provisions of this subsection with
respect to such series if and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such
Trustee had continued as Trustee for such series, occurred after
the beginning of such three-month period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
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(b) There shall be excluded from the operation of subsection (a) of
this Section 9.12 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the
purpose of preserving any property which shall at any time be
subject to the lien of this Indenture or of discharging tax liens
or other prior liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the making thereof
is given to the Holders of the applicable series of Securities
and the Holders of the Coupons, if any, appertaining thereto, at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of transfer agent, registrar, custodian, paying
agent, fiscal agent or depositary, trustee under an indenture, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction as
defined in subsection (c) of this Section 9.12;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of
the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations
which fall within the classification of self-liquidating paper as
defined in subsection (c) of this Section 9.12.
(c) For the purposes of this Section 9.12 only:
(1) The term "default" means any failure to make payment in
full of the principal of, or interest on, any of the Securities
of the applicable series or upon the other indenture securities
when and as such principal or interest becomes due and payable.
(2) The term "other indenture securities" means securities
upon which the Company is an obligor (as
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defined in the Trust Indenture Act of 1939) that are outstanding under
any other indenture (i) under which the Trustee is also trustee;
(ii) which contains provisions substantially similar to the provisions
of this Section, and (iii) under which a default exists at the time of
the apportionment of the funds and property held in such special
account.
(3) The term "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.
(4) The term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company 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 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 Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
(5) The term "Company" means any obligor upon the
Securities.
Section 9.13 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, upon a Company Request, there
shall be an authenticating agent (the "Authenticating Agent") appointed,
for such period as the Company shall elect, by the Trustee for such series
of Securities to act as its agent on its behalf and subject to its
direction in connection with the authentication and delivery of each series
of Securities for which it is serving as Trustee. Securities of each such
series authenticated by such Authenticating Agent shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. For all purposes of this
Indenture (except in the case of original issuance and the issuance of
Securities in replacement of lost, stolen, mutilated or destroyed
Securities), the authentication and delivery of Securities by any
Authenticating Agent pursuant to this Section 9.13 shall be deemed to be
the authentication and delivery of such Securities by the Trustee, and
whenever this Indenture requires (except in the case of original issuance
and the issuance of Securities in replacement of lost, stolen, mutilated or
destroyed Securities)
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that the Trustee shall authenticate and deliver Securities, such
authentication and delivery by an Authenticating Agent shall be deemed to
be authentication and delivery by the Trustee. Such Authenticating Agent
shall at all times be a corporation organized and doing business under the
laws of the United States or of any state thereof, authorized under such
laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination
by federal or state authority.
Any corporation into which any 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 any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of Securities for which
it served as Authenticating Agent without the execution or filing of any
paper or any further act on the part of the Trustee for such series or such
Authenticating Agent. Any Authenticating Agent may at any time, and if it
shall cease to be eligible shall, resign by giving written notice of
resignation to the applicable Trustee and to the Company. The Trustee for
any series of Securities may at any time terminate the agency of any
Authenticating Agent for such series by giving written notice of
termination to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or if at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 9.13 with
respect to one or more or all series of Securities, the Trustee for such
series shall upon Company Request appoint a successor Authenticating Agent,
and the Company shall provide notice of such appointment to all Holders of
Securities of such series or any Coupons appertaining thereto in the manner
and to the extent provided in Section 14.3. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested
with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent
herein. The Trustee for the Securities of such series agrees to pay to the
Authenticating Agent for such series from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be
reimbursed for such payment subject to the provisions of Section 9.6. The
Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the
direction of the Trustee for such series.
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ARTICLE 10
CONCERNING THE HOLDERS OF SECURITIES
Section 10.1 Action by Holders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any series may take any action (including the
making of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action), the fact that at the time of
taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments
of similar tenor executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in favor
thereof at any meeting of such Holders duly called and held in accordance
with the provisions of Article 11, or (c) by combination of such instrument
or instruments and any such record of such a meeting of Holders. The
Company may set a record date for purposes of determining the identity of
Holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture, which record date shall be
the later of 30 days before the first solicitation of such consent or the
date of the most recent list of Holders furnished to the Trustee pursuant
to Section 7.1 of this Indenture before such application. If the record
date is fixed, those persons who were Holders of Securities at such record
date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be
Holders after such record date.
Section 10.2 Proof of Execution of Instruments by Holders of
Securities. Subject to the provisions of Sections 9.1, 9.2 and 11.5, proof
of the execution of any instrument by a Holder of a Security or of any
Coupon (or his agent or proxy) and proof of the holding by any person of
any of the Securities shall be sufficient if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public
or other officer authorized to take acknowledgments of deeds that
the person executing such instrument acknowledged to him the
execution thereof or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer.
Where such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such
corporation, association or partnership or by any other person
acting in a representative capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
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The ownership of Registered Securities of any series shall be proved
by the Securities Register for such series or by a certificate of the
Securities Registrar for such series; the ownership of Unregistered
Securities of any series and Coupons shall be proved by proof of possession
reasonably satisfactory to the Trustee.
The record of any Holders' meeting shall be proved in the manner
provided in Section 11.6.
Section 10.3 Persons Deemed Owners. The Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name any
Registered Security is registered as the owner of such Registered Security
for the purpose of receiving payment of principal of, premium, if any, and
(subject to Section 3.8), if such Registered Security is a Fully Registered
Security, interest, if any, on, such Registered Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither
the Company or the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary. The Company, the Trustee and
any agent of the Company or the Trustee may treat the Holder of any
Unregistered Security and the Holder of any Coupon, whether or not the
Security to which such Coupon appertained be registered, as the absolute
owner of such Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes whatsoever whether
or not such Security or Coupon be overdue, and neither the Company, the
Trustee, any Paying Agent nor any Security Registrar shall be affected by
notice to the contrary. All such payments so made to any Holder for the
time being, or upon his order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon such Security or Coupon.
Section 10.4 Revocation of Consents; Future Holders Bound. At any
time before (but not after) the evidencing to the Trustee, as provided in
Section 10.1, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Securities specified in this Indenture
in connection with such action, any Holder of a Security, the number,
letter, or other distinguishing symbol of which is shown by the evidence to
be included in the Securities the Holders of which have consented to such
action, may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 10.2, revoke such
action so far as concerns such Security. Otherwise, any such action taken
by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and any
Coupon appertaining thereto and of any Securities and Coupons issued in
exchange or substitution therefor, whether or not any notation in regard
thereto is made upon such Security or Coupons or such other Security or
Coupons.
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ARTICLE 11
HOLDERS' MEETINGS
Section 11.1 Purposes of Meetings. A meeting of Holders of
Securities of any or all series may be called at any time and from time to
time pursuant to the provisions of this Article 11 for any of the following
purposes:
(1) to give any notice to the Company or to the Trustee for
the Securities of such series, or to give any directions to the
Trustee for such series, or to consent to the waiving of any
default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to any of the
provisions of Article 8;
(2) to remove the Trustee for such series and nominate a
successor Trustee pursuant to the provisions of Article 9;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 12.1(g); or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal
amount of the Securities of any one or more or all series, as the
case may be, under any other provision of this Indenture or under
applicable law.
Section 11.2 Call of Meetings by Trustee. The Trustee for the
Securities of any series may at any time call a meeting of Holders of
Securities of such series to take any action specified in Section 11.1, to
be held at such time and at such place as the Trustee for such series shall
determine. Notice of every meeting of the Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given to
Holders of Securities of such series in the manner and to the extent
provided in Section 14.3. Such notice shall be given not less than 20 nor
more than 90 days before the date fixed for the meeting.
Section 11.3 Call of Meetings by Company or Holders. If at any time
the Company or the Holders of at least 10% in aggregate principal amount of
the Outstanding Securities of any or all series, as the case may be, shall
have requested the Trustee for such series to call a meeting of Holders of
Securities of any or all series, as the case may be, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee for such series shall not have given the notice of
such meeting within 20 days
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after receipt of such request, then the Company or such Holders may
determine the time and the place for such meeting and may call such meeting
to take any action authorized in Section 11.1, by giving notice thereof as
provided in Section 11.2.
Section 11.4 Qualifications for Voting. To be entitled to vote at
any meeting of Holders, a person shall be (a) a Holder of one or more
Securities with respect to which such meeting is being held or (b) a person
appointed by an instrument in writing as proxy by such Holder. The only
persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee for the Securities of the
series with respect to which such meeting is being held and its counsel and
any representatives of the Company and its counsel.
Section 11.5 Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee for the Securities of any series may make such
reasonable regulations as it may deem advisable for any meeting of Holders
of the Securities of such series, in regard to proof of the holding of
Securities of such series and of the appointment of proxies, and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall determine to be necessary or advisable.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of the Securities of such series as provided in
Section 11.3, in which case the Company or the Holders calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be
elected by the vote of the holders of a majority in principal amount of the
Securities represented at the meeting.
Subject to the proviso in the definition of "Outstanding," at any
meeting each Holder of Securities with respect to which such meeting is
being held (or proxy therefor) shall be entitled to one vote for each 1,000
(in the currency or currency unit in which such Securities are denominated)
principal amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in such definition of
"Outstanding") of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any such
Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him
or instruments in writing duly designating him as the person to vote on
behalf of other Holders of such series. At any meeting of Holders, the
presence of persons holding or repre-
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senting Securities with respect to which such meeting is being held in
an aggregate principal amount sufficient to take action on the business for the
transaction of which such meeting was called shall constitute a quorum, but, if
less than a quorum is present, the persons holding or representing a majority
in aggregate principal amount of such Securities represented at the meeting may
adjourn such meeting with the same effect, for all intents and purposes, as
though a quorum had been present. Any meeting of Holders of Securities with
respect to which a meeting was duly called pursuant to the provisions of
Section 11.2 or Section 11.3 may be adjourned from time to time by the holders
of a majority in principal amount of the Securities represented at the meeting,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
Section 11.6 Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is
being held shall be by written ballots on which shall be subscribed the
signatures of such Holders or of their representatives by proxy and the
serial number or numbers of the Securities held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to the
record the original reports of the inspectors of votes on any vote by
ballot taken at such meeting and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting
and showing that notice was mailed as provided in Section 11.2. The record
shall show the serial numbers of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting, and one
of the duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 11.7 No Delay of Rights by Meeting. Nothing contained in
this Article 11 shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Holders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders under any of the provisions of this Indenture or
of the Securities of any series.
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ARTICLE 12
SUPPLEMENTAL INDENTURES
Section 12.1 Supplemental Indentures. The Company and the Trustee
for the Securities of any or all series may from time to time and at any
time enter into an indenture or indentures supplemental hereto for one or
more of the following purposes:
(a) if deemed appropriate by the Company or required by
law, to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and
obligations of the Company under the Indenture and the
Securities;
(b) to add to the covenants of the Company such further
covenants, restrictions or conditions for the protection of the
Holders of all or any series of Securities and the Coupons, if
any, appertaining thereto as its Board of Directors and the
Trustee for such series shall consider to be necessary or
advisable for the protection of the Holders of such Securities;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture that
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make
such other provisions in regard to matters or questions arising
under this Indenture that shall not be inconsistent with the
provisions of this Indenture and that shall not adversely affect
the interests of the Holders of any Securities or the Coupons, if
any, appertaining thereto in any material respect;
(d) to establish the form or terms of Securities of any
series and the Coupons, if any, appertaining thereto as permitted
by Section 3.1;
(e) to permit payment in the United States of principal,
premium or interest on Unregistered Securities or of interest on
Coupon Securities;
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series or to add to or change any of
the provisions of this Indenture necessary to provide for or
facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 9.10;
or
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(g) if and to the extent authorized by the consent
(evidenced as provided in Section 10.1) of the Holders of at
least a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental
indenture, to make such other changes in or additions to or
eliminations from the Indenture as such Holders and the Company
may deem necessary or advisable; provided, however, that no such
supplemental indenture shall (i) without the consent of the
Holder of each Outstanding Security of each such series affected
thereby:
(1) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Security of such
series, or reduce the principal amount thereof or the
premium, if any, or the rate of interest, if any, thereon or
change the Place of Payment, or the currency or currency
unit in which any Security of such series or any premium or
interest therein is payable, or reduce the amount of the
principal of an Original Issue Discount Security that would
be due and payable upon an acceleration of the maturity
thereof pursuant to Section 8.1 or adversely affect the
right of repayment, if any, at the option of the Holder, 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
(2) reduce the requirements of Section 11.5 for quorum
or voting, or 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 12.1
or Section 6.3, except to increase any such percentage or to
provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the
Holders of each Security of such series affected thereby;
or (ii) modify, without the written consent of the Trustee, the
rights, duties or immunities of the Trustee.
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It shall not be necessary for the consent of the Holders under this
Section 12.1 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Any such supplemental indenture, and this Indenture as so
supplemented, shall conform to the requirements of the Trust Indenture Act
of 1939, as amended and in force at the date of execution of such
supplemental indenture.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture (a) that has expressly been included
solely for the benefit of one or more particular series of Securities and
the Coupons, if any, appertaining thereto, or (b) that modifies the rights
of the Holders of Securities of such series or any Coupons appertaining
thereto 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 or any Coupons appertaining thereto.
The Trustee with respect to any series of Securities affected by such
supplemental indenture is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but
such Trustee shall not be obligated to enter into any such supplemental
indenture which affects such Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Section 12.2 Notice of Supplemental Indenture. Promptly after the
execution by the Company and the appropriate Trustee of any supplemental
indenture pursuant to Section 12.1(g), the Company shall notify as provided
in Section 12.1(g) all Holders of any series of Securities and of any
Coupons appertaining thereto affected by such supplemental indenture as to
the general terms and substance of such supplemental indenture.
Section 12.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article 12,
this Indenture shall be, and shall thereafter be deemed to be, modified and
amended in accordance therewith, but only with regard to the Securities of
each series affected by such supplemental indenture, and the rights,
limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee for the Securities of such series, the Company and
Holders of any Securities of such series or of any Coupons appertaining
thereto shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture shall be, and shall
thereafter be deemed to be, part of the terms and conditions of this
Indenture for any and all purposes with regard to the Securities of such
series and of any Coupons appertaining thereto.
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Section 12.4 Notation on Securities and Coupons. Securities of any
series (including any Coupons appertaining thereto) affected by any
supplemental indenture that are authenticated and delivered after the
execution of such supplemental indenture pursuant to the provisions of this
Article 12 may bear a notation in form approved by the Trustee for such
series as to any matter provided for in such supplemental indenture. If
the Company or the Trustee shall so determine, new Securities of any series
and any Coupons appertaining thereto so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared by the Company, authenticated by the Trustee and delivered
in exchange for the Securities of such series and any Coupons appertaining
thereto then Outstanding.
Section 12.5 Issuance of Securities by Successor Corporation. If the
Company shall be consolidated with or merged into any other corporation or
corporations, or shall convey or transfer all or substantially all its
property as an entirety, the successor corporation formed by such
consolidation or into which the Company shall have been merged or which
shall have received such conveyance or transfer, upon causing the
supplemental indenture referred to in Section 12.1(a) to be executed and
delivered, shall succeed to and be substituted for the Company with the
same effect as if it had been named herein as the party of the first part
and in all of the Securities and the Coupons, if any, appertaining thereto
as obligor. Thereupon and thereafter, such successor corporation may cause
to be executed, either in its own name or in the name of Intel Corporation,
or delivered to the appropriate Trustee for authentication, any or all of
the Securities and any Coupons appertaining thereto issuable hereunder.
Upon the order of such successor corporation in lieu of the Company, or
subject to all the terms, conditions and restrictions prescribed in this
Indenture, the Trustee for the Securities of the appropriate series shall
authenticate and delivery any Securities of such series and any Coupons
appertaining thereto which shall have been previously executed and
delivered by the Company to the Trustee for authentication, and any
Securities and Coupons appertaining thereto which such successor
corporation shall thereafter, in accordance with the provisions of this
Indenture, cause to be executed and delivered to the Trustee for such
purpose. Changes in phraseology and form (but not in substance) may be
made in such Securities and Coupons that are appropriate in view of such
consolidation or merger or conveyance or transfer. All the Securities and
Coupons, when issued by such successor corporation shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
and the Coupons appertaining thereto theretofore or thereafter issued, as
though all of such Securities and Coupons had been issued as of the date of
the execution hereof.
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ARTICLE 13
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 13.1 Satisfaction and Discharge. This Indenture shall cease
to be of further effect with respect to a certain series (except as to any
rights of registration of transfer or exchange of Securities herein
expressly provided for) if the Company has paid or caused to be paid all
sums payable by the Company hereunder with regard to such series and if:
(a) the Company shall deliver to the Trustee for the
Securities of such series for cancellation all Securities of all
series and the Coupons, if any, appertaining thereto for which
such Trustee is Trustee theretofore authenticated (other than any
Securities of such series and any Coupons that shall have been
destroyed, lost or stolen) and not theretofore cancelled, or
(b) all the Securities of all such series and the Coupons,
if any, appertaining thereto not theretofore cancelled or
delivered to the applicable Trustee for cancellation shall have
become due and payable, or are by their terms to become due and
payable within one year, or are to be called for redemption
within one year under arrangement satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit
with the Trustee as trust funds the entire amount sufficient (or
obligations of or guaranteed as to principal and interest by, the
United States of America, which shall not contain provisions
permitting the redemption thereof at the option of the issuer
thereof, the principal of, and interest on which due, and without
any reinvestment thereof, will provide moneys that, together with
the moneys, if any, deposited with or held by the Trustee or any
Paying Agent at the same time, shall be sufficient) to pay at
maturity or upon redemption all of the Securities of all such
series and the Coupons, if any, appertaining thereto (other than
any Securities and Coupons that shall have been destroyed, lost
or stolen and in lieu of or substitution for which other
Securities and Coupons shall have been authenticated and
delivered) not theretofore cancelled or delivered to the Trustee
for cancellation, including principal due or to become due to
such date of maturity or Redemption Date, as the case may be.
Any cash received from such principal or interest payments on such
obligations deposited with the Trustee as described in paragraph (b) above,
if not then needed for such purpose, shall, to the extent practicable, be
reinvested in obligations of the
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type described in paragraph (b) above maturing at times and in amounts
sufficient to pay when due the principal of, and interest or premium, if
any, to become due on, Securities on and prior to such redemption date or
maturity date thereof, as the case may be, and interest earned from such
reinvestments shall be paid to the Company, as received by the Trustee,
free and clear of any trust, lien or pledge.
Upon satisfaction of the above requirements, and upon receipt of a
written request from the Company, the Trustee shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture
with respect to all such series (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly
provided for). The written request from the Company referred to in the
preceding sentence shall be accompanied by an Officers' Certificate
complying with the provisions of Section 7.5, stating that all conditions
precedent relating to the satisfaction and discharge of the Indenture with
respect to all such series (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly
provided for) have been complied with, and an Opinion of Counsel, complying
with the provisions of Section 7.5, stating that in the opinion of such
counsel such conditions precedent have been complied with. Thereafter, the
Company shall reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection with this
Indenture or the Securities.
Section 13.2 Application of Moneys. All moneys deposited with the
Trustee pursuant to Section 13.1 shall be held in trust by the Trustee and
applied by it to the payment, either directly or through any Paying Agent
for such series (including the Company acting as its own Paying Agent), to
the Holders of the particular Securities and the Coupons, if any,
appertaining thereto for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due and to become due
thereon for principal, and premium and interest, if any.
Section 13.3 Repayment of Moneys by Paying Agents. Except as
provided in Section 13.4, upon the satisfaction and discharge of this
Indenture with respect to the Securities of any series and the Coupons, if
any, appertaining thereto all moneys with respect to such series then held
by any Paying Agent for such series under the provisions of this Indenture
shall, upon demand of the Company, be repaid to it and thereupon such
Paying Agent shall be released from all further liability with respect to
such moneys.
Section 13.4 Unclaimed Moneys. Any moneys deposited with the Trustee
for the Securities of any series and the Coupons, if any, appertaining
thereto for the payment of the principal of, and premium or interest, if
any, on, Securities of such series and the Coupons, if any, appertaining
thereto and which shall not be applied but shall remain unclaimed by the
Holders of
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Securities of such series and the Coupons, if any, appertaining thereto
under applicable law shall be transferred by the Trustee to the appropriate
Persons in accordance with applicable laws. Thereafter, the Holder of any
such Securities or Coupons entitled to receive such payment shall look only
to such Persons for the payment thereof.
ARTICLE 14
MISCELLANEOUS PROVISIONS
Section 14.1 Limitation of Individual Liability. No recourse under
or upon any obligation, covenant or agreement of this Indenture, or of any
Security or Coupon, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise. It is expressly understood that
this Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to,
or is or shall be incurred by, the incorporators, stockholders, officers or
directors, as such, of the Company or of any successor corporation, or any
of them, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or Coupons or implied therefrom.
Any such personal liability of any nature, either at common law or in
equity or by constitution or statute, of, and all such rights and claims
against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or Coupons or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities and Coupons, if any.
Section 14.2 Successors. All the covenants, stipulations, promises
and agreements contained in this Indenture by or in behalf of the Company
shall bind its successors and assigns, whether so expressed or not.
Section 14.3 Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (1) if any of the Securities
affected by such event are Fully Registered Securities, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed by first-class mail, postage prepaid, to such Holders as
their names and addresses appear in the Securities Register within the time
prescribed, and (2) if any of the Securities
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affected by such event are Unregistered Securities or Coupon Securities,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed by first-class mail, postage prepaid, to
such Holders in the manner and to the extent provided in Section 7.4(c) and
if published in an Authorized Newspaper or Newspapers in such city or
cities as may be provided elsewhere in this Indenture or specified as
contemplated by Section 3.1 on a Business Day at least twice (the first
such publication to be not earlier than the earliest date and not later
than the latest date prescribed for the giving of such notice). 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 on such waiver. 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, and any notice which is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given. If, by reason of the suspension of publication of any
Authorized Newspapers or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Unregistered Securities
or of Coupons as provided above, then notification to Holders of
Unregistered Securities or of Coupons given with the approval of the
Trustee shall constitute sufficient notice to such Holders for every
purpose hereunder.
Section 14.4 Addresses for Notices. Any notice or demand that by any
provision of this Indenture is required or permitted to be given or served
by the Trustee for the Securities of any series or by the Holders of
Securities of any series or of any Coupons appertaining thereto on the
Company may be sent by registered mail, hand delivered or sent by overnight
courier, addressed (until another address is filed by the Company with the
Trustee) as follows: Intel Corporation, Attention: Treasurer, 2200 Mission
College Boulevard, Santa Clara, CA 95052. Any notice, direction, request
or demand by any Holder of Securities of any series to or upon the Trustee
for such series or of any Coupons appertaining thereto shall be deemed to
have been sufficiently given or made, for all purposes, if given or made at
the Corporate Trust Office of the Trustee, and, in respect of Unregistered
Securities or Coupons, at the corporate trust office of the Trustee
referred to in Section 6.2(1). Any notice or demand required or permitted
under this Indenture shall be in the English language, except that any
published notice may be in the official language of the country of
publication.
Section 14.5 Cross References. All references herein to "Articles,"
"Section" and other subdivisions are to the
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corresponding Articles or other subdivisions of this Indenture; and the
words "herein," "hereof," "hereby," "hereunder," "hereinbefore" and
"hereinafter" and other words of similar purport refer to this Indenture
generally and not to any particular Article, Section, or other subdivision
hereof.
Section 14.6 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 14.7 Headings Not To Affect Construction. The headings of
the Articles, Sections and other subdivisions hereof are for convenience
only and shall not affect the construction hereof.
Section 14.8 Trust Indenture Act To Govern. 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 14.9 Legal Holidays. In any case where the date of maturity
of interest on or principal of or premium, if any, on the Securities or
Coupons or the date fixed for redemption or repayment of any Security shall
not be a Business Day at any Place of Payment with respect to Securities of
that series, then (notwithstanding any other provisions of this Indenture
or of the Security or Coupons) payment of such interest on or principal of
or premium, if any, on the Securities and Coupons need not be made on such
date in such Place of Payment but may be made on the next succeeding
Business Day in such Place of Payment with the same force and effect as if
made on the date of maturity or the date fixed for redemption or repayment,
as the case may be, and no interest shall accrue for the period from and
after such date of maturity or date fixed for redemption or repayment.
Section 14.10 Governing Law. This Indenture and each Security for
all purposes shall be governed by and construed in accordance with the laws
of the State of California, unless with respect to Securities of a series
it is provided that the laws of another jurisdiction shall govern.
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ARTICLE 15
SUBORDINATION OF SECURITIES
Section 15.1 Subordination. Notwithstanding anything to the contrary
in this Indenture or the Securities of any series, or any Coupons
appertaining thereto, the Company, for itself, its successors and assigns,
covenants and agrees and each Holder of the Securities of any series by his
acceptance thereof likewise covenants and agrees that the payment of
principal, premium, if any, and interest in respect of the indebtedness
issued pursuant to this Indenture shall be junior and subordinate and
subject in right of payment to all Senior Indebtedness as provided in this
Article 15.
As used in this Article 15, "Senior Indebtedness" shall mean (a) all
indebtedness of the Company for money borrowed (including purchase-money
obligations with an original maturity in excess of one year) or evidenced
by debentures, notes or other corporate debt securities or similar
instruments issued by the Company; (b) indebtedness or obligations of the
Company constituting a guarantee of indebtedness of or an obligation of
others of the type referred to in (a) above; or (c) any modification,
extension, renewal or refunding of any of the indebtedness or obligations
referred to in (a) or (b) above, unless, in the case of any particular
indebtedness or obligation, modification, extension, renewal or refunding,
under the express provisions of the instrument creating or evidencing the
same, or pursuant to which the same is outstanding, such indebtedness or
other obligation or such modification, extension, renewal or refunding
thereof is not superior in right of payment to the Securities.
Section 15.2 Acceleration of Securities. If any of the Securities of
any series are declared or become due and payable before their Stated
Maturity because of the occurrence of an Event of Default hereunder (under
circumstances when the provisions of Section 15.4 shall not be applicable),
then all Senior Indebtedness shall be paid in full before any payment or
distribution of any character, whether in cash, securities or other
property (whether in respect of principal, premium, if any, or interest)
shall be made in respect of the Securities of such series.
Section 15.3 Default on Senior Indebtedness. Unless and until all
Senior Indebtedness shall have been paid in full in accordance with its
terms, the Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, make or agree to make:
(a) any payment or prepayment (in cash or property, by set-
off or otherwise), direct or indirect, of principal, premium, if
any, or interest in respect of any of the Securities (or any
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indebtedness subordinated to the Securities), and no such payment
shall be due or payable or shall be accepted by any Holder of any such
Securities, or
(b) any redemption, purchase or other acquisition, direct
or indirect, of any Securities (or any indebtedness subordinated
to the Securities), and no Holder of any Securities shall be a
party to any such redemption, purchase or other acquisition, or
(c) any payment on account of a sinking fund for any of the
Securities (except sinking-fund payments made in Securities
acquired by the Company before the occurrence of an event of
default with respect to Senior Indebtedness), if an event of
default with respect to any Senior Indebtedness (as defined in
any agreement pursuant to which Senior Indebtedness shall have
been issued) shall have occurred and be continuing or if any such
action would constitute an event of default on the part of the
Company in respect of any Senior Indebtedness or any instrument
or agreement relating thereto and such event of default shall be
continuing.
As used in this Article 15, "Subsidiary" shall mean any corporation
(or any other person treated by the Company for its accounting purposes as
a corporation) of which at least a majority of the outstanding stock having
by the terms thereof ordinary voting power to elect a majority of the board
of directors of such corporation (irrespective of whether or not at the
time stock of any 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 Company, or by any
one or more Subsidiaries, or by the Company and one or more Subsidiaries.
Section 15.4 Insolvency, etc. In the event of (i) any insolvency or
bankruptcy proceeding, or any receivership, liquidation or other similar
proceeding in connection therewith, relative to the Company or its
property, or (ii) any proceeding for voluntary liquidation, dissolution or
other winding-up of the Company, whether or not involving insolvency or
bankruptcy, or (iii) any assignment for the benefit of creditors, or
(iv) any distribution, division, marshalling or application of any of the
properties or assets of the Company or the proceeds thereof, to creditors,
voluntary or involuntary, and whether or not involving legal proceedings,
then in any such event:
(a) all Senior Indebtedness shall first be paid in full
before any payment or distribution of any character, whether in
cash, securities or other property, shall be made by the Company
in respect of any of the Securities;
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(b) all principal of and premium, if any, and interest on
the Securities shall (notwithstanding the terms of Section 15.3)
become due and payable, and any payment or distribution of any
character, whether in cash, securities or other property, which
would otherwise (but for the terms hereof) be payable or
deliverable by the Company in respect of any of the Securities
(including any payment or distribution in respect of any of the
Securities by reason of any other indebtedness of the Company
being subordinated to the Securities), shall be paid or delivered
directly to the holders of Senior Indebtedness at the time
outstanding (or their respective representatives), or to the
trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the respective aggregate
amounts remaining unpaid thereon, until all Senior Indebtedness
shall have been paid in full (but subject to the power of a court
of competent jurisdiction to make other equitable provision
reflecting the rights of the Senior Indebtedness and the holders
thereof with respect to the Securities by lawful plan of
reorganization under applicable bankruptcy law), and the Holders
of the Securities at the time outstanding irrevocably authorize,
empower and direct all receivers, trustees, liquidators,
conservators and others having authority in the premises to
effect all such payments and deliveries;
(c) the Holders of the Securities at the time outstanding
irrevocably authorize and empower (without imposing any
obligation on) each holder of Senior Indebtedness at the time
outstanding and such holder's representatives to demand, sue for,
collect and receive such holder's ratable share of all such
payments and distributions and to receipt therefor, and to file
and prove all claims therefor and take all such other action
(including the right to vote such Senior Indebtedness holder's
ratable share of the Securities) in the name of the Holders of
the Securities or otherwise, as such Senior Indebtedness holder
or such holder's representatives may determine to be necessary or
appropriate for the enforcement of this Section 15.4; and
(d) the Holders of the Securities shall execute and deliver
to each holder of Senior Indebtedness and such holder's
representatives all such further instruments confirming the above
authorization, and all such powers of attorney, proofs of claim,
assignments of claim and other instruments, and shall take all such
other action as may be requested by such holder or such holder's
representatives, in order to
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enable such holder to enforce all claims upon or in respect of such
holder's ratable share of the Securities.
Section 15.5 Payments and Distributions Received. If any payment or
distribution of any character (whether in cash, securities or other
property) or any security shall be received by the Trustee or any Holder of
any of the Securities in contravention of any of the terms hereof and
before all Senior Indebtedness shall have been paid in full, such payment
or distribution or security shall be held in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness at the time outstanding (or their respective
representatives), or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, for application to the payment of all Senior Indebtedness
remaining unpaid, ratably according to the respective aggregate amounts
remaining unpaid thereon, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee (pursuant
to Section 15.4) or any Holder of any of the Securities to endorse or
assign any such payment, distribution or security, each holder of Senior
Indebtedness and each such holder's representative is hereby irrevocably
authorized to endorse or assign the same.
Section 15.6 Excess Senior Indebtedness Payment, Subrogation, etc.
If cash, securities or other property otherwise payable or deliverable to
the Holders of the Securities shall have been applied, pursuant to Section
15.4 or 15.5, to the payment of Senior Indebtedness in full, then in such
case, the Holders of the Securities (a) shall be entitled to receive from
the holders of the Senior Indebtedness at the time outstanding any payments
or distributions received by such holders of Senior Indebtedness in excess
of the amount sufficient to pay all Senior Indebtedness in full, and
(b) shall be subrogated to any rights of the holders of Senior Indebtedness
to receive all further payments or distributions applicable to the Senior
Indebtedness, until all principal of and premium, if any, and interest on
the Securities shall have been paid in full. No such payments or
distributions received by the Holders of the Securities, by reason of such
subrogation, of cash, securities or other property, which otherwise would
be paid or distributed to the holders of Senior Indebtedness, shall, as
between the Company and its creditors (other than the holders of the Senior
Indebtedness), on the one hand, and the Holders of the Securities, on the
other hand, be deemed to be a payment by the Company to or on account of
the Securities.
Section 15.7 No Security. So long as any of the Senior Indebtedness
shall not have been paid in full, the Company shall not, and shall not
permit any of its Subsidiaries to, give and the Holders of the Securities
shall not demand, accept or receive any security, direct or indirect, for
any Securities.
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Section 15.8 Obligations Not Impaired. Nothing contained in this
Article 15 or elsewhere in this Indenture or in the Securities is intended
to or shall impair, as between the Company and the Holder of any
Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the holder thereof the principal of, premium, if
any, and interest thereof as and when the same shall become due and payable
in accordance with the terms thereof, or is intended to or shall affect the
relative rights of the Holders of the Securities and creditors of the
Company other than the holders of the Senior Indebtedness, or is intended
to or shall prevent the Trustee or the Holder of any Securities, upon the
occurrence of an Event of Default, from exercising all rights, powers and
remedies otherwise provided herein or permitted by applicable law, all
subject to the rights, if any, of the holders of Senior Indebtedness under
this Article 15 to receive cash, securities or other property otherwise
payable or deliverable to the Holders of the Securities. Upon any
distribution of assets of the Company referred to in this Article 15, the
Trustee, subject to the provisions of Section 9.1, and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of
the liquidating trustee or agent or other person making any distribution to
the Trustee or to the Holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this
Article 15.
Section 15.9 Subordination Not Affected, etc. The terms of this
Article 15, the subordination effected hereby and the rights of the present
or future holders of the Senior Indebtedness, shall not be affected by
(a) any amendment of or addition or supplement to any Senior Indebtedness
or any instrument or agreement relating thereto, (b) any exercise or
nonexercise of any right, power or remedy under or in respect of any Senior
Indebtedness or any instrument or agreement relating thereto, (c) any sale,
exchange, release or other transaction affecting all or any part of the
property at any time pledged or mortgaged to secure, or however securing,
Senior Indebtedness, (d) any waiver, consent, release, indulgence,
extension, renewal, modification, delay, noncompliance or other action,
inaction or omission, in respect of any Senior Indebtedness or this
Indenture or any instrument or agreement relating thereto, (e) any act or
failure to act on the part of the Company, or (f) any act or failure to
act, in good faith, by any such holder, whether or not any Holder of any
Securities shall have had notice or knowledge of any of the foregoing.
Section 15.10 Changes, Waivers, etc. Neither this Article 15 nor any
terms hereof may be changed or waived except
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with the prior written consent of the holders of all of the Senior
Indebtedness at the time outstanding. Neither the Securities nor any term
thereof may be changed, waived or canceled in any manner that would have
any adverse effect upon the rights of the holders of the Senior
Indebtedness at the time outstanding.
Section 15.11 Payment in Full of Senior Indebtedness. For all
purposes of this Article 15, Senior Indebtedness shall not be deemed to
have been paid in full unless (a) the holders thereof (or their duly
authorized representatives) shall have received cash or readily marketable
securities, taken at their then market value, equal to the amount of Senior
Indebtedness at the time outstanding, or (b) other equitable provisions
have been effected by action of a court of competent jurisdiction or
agreement among the holders of Senior Indebtedness.
Section 15.12 Trustee Entitled To Assume Payments Not Prohibited in
Absence of Notice. The Trustee shall not at any time be charged with
knowledge of the existence of any facts that would prohibit the making of
any payment of moneys to or by the Trustee, unless and until the Trustee
shall have received written notice thereof from the Company or from one or
more holders of Senior Indebtedness or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Article 9, shall be entitled to assume that no such facts
exist.
Section 15.13 Application by Trustee of Moneys Deposited With It.
Anything in this Indenture to the contrary notwithstanding, any deposit of
moneys by the Company with the Trustee or any payment agent (whether or not
in trust) for the payment of the principal of or premium, if any, or
interest on any Securities shall be subject to the provisions of this
Article 15 except that, if prior to the date on which by the terms of this
Indenture any such moneys may become payable for any purpose (including the
payment of either the principal of or the interest or premium, if any, on
any Securities) the Trustee shall not have received with respect to such
moneys the notice provided for in Section 15.12, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such moneys and to apply the same to the
purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such date.
Section 15.14 Securityholders Authorize Trustee To Effectuate
Subordination of Securities. Each Holder of the Securities by his
acceptance thereof authorizes and expressly directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article 15 and appoints the Trustee his
attorney-in-fact for such purpose, including taking action on behalf of the
Holders of the Securities, when required, as specified in
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Section 15.4 and including, in the event of any dissolution, winding-up,
liquidation or reorganization of the Company (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the
benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Company, the immediate filing of a claim for the
unpaid balance of its or his Securities in the form required in such
proceedings and causing such claim to be approved. If the Trustee does not
file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holder or holders of Senior Indebtedness are
hereby authorized to and have the right to file and are hereby authorized
to file an appropriate claim for and on behalf of the Holders of such
Securities.
Section 15.15 Right of Trustee To Hold Senior Indebtedness. The
Trustee shall be entitled to all of the rights set forth in this Article 15
in respect of any Senior Indebtedness at any time held by it to the same
extent as any other holder of Senior Indebtedness, and nothing in Article 9
or elsewhere in this Indenture shall be construed to deprive the Trustee of
any of its rights as such holder.
Section 15.16 Article 15 Not To Prevent Events of Default. The
failure to make a payment on account of principal, interest or sinking fund
by reason of any provision in this Article 15 shall not be construed as
preventing the occurrence of an Event of Default under Section 8.1.
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