1
EXHIBIT 4(a)
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TEXAS INSTRUMENTS INCORPORATED
to
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
JUNIOR SUBORDINATED INDENTURE
Dated as of _______ __, 1996
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2
TEXAS INSTRUMENTS INCORPORATED
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by
the Trust Reform Act of 1990, are a part of and govern the Indenture whether or
not physically contained therein) and the Junior Subordinated Indenture, dated
as of ________ __, 1996.
Trust Indenture
Act Section Indenture Section
Section 310(a)(1), (2) and (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(b)
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a)(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a)(2)
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a), 7.03(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(c)
Section 314(a)(1), (2) and (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.06
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a)(6)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(a)(1)
3
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.04(f)
Section 317 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.07
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Junior Subordinated Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Compliance Certificate and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.03. Forms of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.04. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.05. Notices, Etc. to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.06. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.07. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.08. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.09. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.10. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.11. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.13. Non-Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 2
DEBENTURE FORM
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.02. Form of Face of Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.03. Form of Reverse of Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.04. Additional Provisions Required in Global Debenture . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.05. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 3
THE DEBENTURES
SECTION 3.01. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.03. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.04. Temporary Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.05. Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Debentures . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.07. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.08. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.09. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.10. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.11. Deferrals of Interest Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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SECTION 3.12. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.13. Agreed Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.14. Cusip Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.03. Satisfaction, Discharge and Defeasance of Debentures of Any Series . . . . . . . . . . . . . 33
ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . 37
SECTION 5.04. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.05. Trustee May Enforce Claim Without Possession of Debentures . . . . . . . . . . . . . . . . . 39
SECTION 5.06. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.09. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.12. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.15. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.02. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.04. Not Responsible for Recitals or Issuance of Debentures . . . . . . . . . . . . . . . . . . . 46
SECTION 6.05. May Hold Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.06. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.07. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.08. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.09. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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SECTION 6.10. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.11. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . 50
SECTION 6.13. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.14. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . 52
SECTION 7.02. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . 53
SECTION 7.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 7.04. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.02. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.02. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.03. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.04. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.05. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.06. Reference in Debentures to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.03. Money for Debenture Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.04. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.05. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.06. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.07. Additional Sums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 10.08. Additional Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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ARTICLE 11
REDEMPTION OF DEBENTURES
SECTION 11.01. Applicability of this Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.02. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.03. Selection of Debentures to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.04. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 11.06. Debentures Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 11.07. Company's Right of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE 12
SINKING FUNDS
SECTION 12.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 12.02. Satisfaction of Sinking Fund Payments With Debentures . . . . . . . . . . . . . . . . . . . 67
SECTION 12.03. Redemption of Debentures for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE 13
SUBORDINATION OF DEBENTURES
SECTION 13.01. Debentures Subordinate to Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 13.02. Payment Over of Proceeds upon Dissolution, Etc . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 13.03. Prior Payment to Senior Debt upon Acceleration of Debentures . . . . . . . . . . . . . . . . 70
SECTION 13.04. No Payment When Senior Debt in Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 13.05. Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 13.06. Subrogation to Rights of Holders of Senior Debt . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 13.07. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 13.08. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 13.09. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 13.10. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 13.11. Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . . 73
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 13.13. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 13.14. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 13.15. Certain Conversions or Exchanges Deemed Payment . . . . . . . . . . . . . . . . . . . . . . 74
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JUNIOR SUBORDINATED INDENTURE, dated as of ________ __, 1996 between
TEXAS INSTRUMENTS INCORPORATED, a Delaware corporation (hereinafter called the
"Company") having its principal office at 13500 North Central Expressway,
Dallas, Texas 75265, and THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association duly organized and existing under the laws of the United States, as
Trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured junior
subordinated debt securities in series (hereinafter called the "Debentures") of
substantially the tenor hereinafter provided, including, without limitation,
securities issued to evidence loans made to the Company of the proceeds from
the issuance from time to time by a business trust (the "Texas Instruments
Trust") of preferred trust interests in the Texas Instruments Trust (the
"Preferred Securities") and common interests in the Texas Instruments Trust
(the "Common Securities"), and to provide the terms and conditions upon which
the Debentures are to be authenticated, issued and delivered.
All things necessary to make the Debentures, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Debentures or of any
series thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purpose of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
9
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles which are
generally accepted at the date or time of such computation; and
(d) the words "herein" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article 6, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the Debentures of any series that is in arrears for more than
one interest payment period or not paid during any Extension Period, which in
either case shall accrue at the rate per annum specified or determined as
specified in such Debenture.
"Additional Sums" has the meaning specified in Section 10.07.
"Additional Taxes" means the sum of any additional taxes, duties and
other governmental charges to which the Texas Instruments Trust has become
subject from time to time as a result of a Tax Event.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Company shall not be deemed to include the Texas Instruments Trust to which
Debentures have been issued. For the purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Debentures of one or more series.
"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
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10
"Board Resolution" means a copy of the resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors, or such committee of the Board of Directors or officers
of the Company to which authority to act on behalf of the Board of Directors
has been delegated, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday or a day
on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Debentures of a
series issued to the Texas Instruments Trust, the principal office of the
Property Trustee under the Trust Agreement, is closed for business.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Securities" has the meaning specified in the first recital of
this Indenture.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" means, respectively, the written
request or order signed in the name of the Company by its Chairman of the
Board, its Vice Chairman, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered.
"Corporation" includes corporations, associations, companies and
business trusts.
"Debentures" or "Debenture" means any debt securities or debt
security, as the case may be, authenticated and delivered under this Indenture.
"Debt" means, with respect to any Person, whether recourse is to all
or a portion of the assets of such Person and whether or not contingent, (i)
every obligation of such Person for money borrowed; (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such
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Person; (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of such Person; and (vi) every obligation of the type
referred to in clauses (i) through (v) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable, directly or indirectly, as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Debentures of any series
issuable or issued in whole or in part in the form of one or more Global
Debentures, the Person designated as Depositary by the Company pursuant to
Section 3.01 with respect to such series (or any successor thereto).
"Dollar" means the currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
"Establishing Documents" means with respect to Debentures of any
series, the Board Resolution and, if applicable, the other instrument or
instruments executed pursuant thereto and related Officers' Certificate, or the
supplemental Indenture, in which the terms of such Debentures were established.
"Events of Default" has the meaning specified in Article Five subject
to any changes set forth in the Establishing Documents.
"Extension Period" has the meaning specified in Section 3.11.
"Foreign Currency" means any currency issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"Global Debenture" means a Debenture in the form prescribed in Section
2.04 evidencing all or part of a series of Debentures, issued to the Depositary
or its nominee for such series, and registered in the name of such Depositary
or its nominee.
"Government Obligations" means, securities which are (i) direct
obligations of the United States of America or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed by the United States of America and which, in either case, are full
faith and credit obligations of the United States of America and are not
callable or redeemable at the option of the issuer thereof and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of any
such
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Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian
in respect of the Government Obligation or the specific payment of interest on
or principal of the Government Obligation evidenced by such depository receipt.
"Holder" means a Person in whose name a Debenture is registered in the
Securities Register.
"Junior Subordinated Payment" has the meaning specified in Section
13.02.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of each particular series of Debentures established
as contemplated by Section 3.01.
"Interest Payment Date" means as to each series of Debentures the
Stated Maturity of an installment of interest on such Debentures.
"Interest Rate" means the rate of interest specified or determined as
specified in each Debenture as being the rate of interest payable on such
Debenture.
"Investment Company Event" means, in respect of the Texas Instruments
Trust, the receipt by the Texas Instruments Trust of an Opinion of Counsel,
rendered by a law firm having a recognized national tax and securities
practice, to the effect that, as a result of the occurrence of a change in law
or regulation or a change in interpretation or application of law or regulation
by any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), the Texas Instruments Trust is or will be considered
an "investment company" that is required to be registered under the 1940 Act,
which Change in 1940 Act Law becomes effective on or after the date of original
issuance of the Preferred Securities of such Texas Instruments Trust.
"Lien" means any mortgage, pledge, lien, security interest or other
encumbrance.
"Maturity" when used with respect to any Debenture, means the date on
which the principal of such Debenture becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call or redemption or otherwise.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Notice of Default" has the meaning specified in Section 5.01(c).
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"Officers' Certificate" means a certificate signed by (i) the
Chairman, Chief Executive Officer, President or a Vice President, and by (ii)
the Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, the Texas Instruments Trust, or the Trustee, and who
may be an employee thereof, and who shall be acceptable to the Trustee.
"Original Issue Date" means the date of issuance specified as such in
each Debenture.
"Original Issue Discount Security" means any security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding" means, as of the date of determination, all Debentures
theretofore authenticated and delivered under this Indenture, except:
(i) Debentures theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debentures for whose payment money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Debentures; and
(iii) Debentures in substitution for or in lieu of which
other Debentures have been authenticated and delivered or which have
been paid pursuant to Section 3.06, unless proof satisfactory to the
Trustee is presented that any Debentures are held by Holders in whose
hands such Debentures are valid, binding and legal obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Debentures have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures owned
by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which the Trustee knows to be so owned shall
be so disregarded. Debentures so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Debentures
and that the pledgee is not the Company or any other obligor upon the
Debentures or any Affiliate of the Company or such other obligor. Upon request
of the Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all
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Debentures, if any, known by the Company to be owned or held by or for the
account of the Company, or any other obligor on the Debentures or any Affiliate
of the Company or such obligor, and, subject to the provisions of Section 6.01,
the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Debentures not listed therein are Outstanding for the purpose of any such
determination.
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of or interest on any Debentures on behalf of the
Company.
"Person" means 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" means, with respect to the Debentures of any
series, the place or places where the principal of (and premium, if any) and
interest on the Debentures of such series are payable pursuant to Section 3.01
or 3.11.
"Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 3.06 in
lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" has the meaning specified in the first recital
of this Indenture.
"Proceeding" has the meaning specified in Section 13.02.
"Property Trustee" means, in respect of the Texas Instruments Trust,
the commercial bank or trust company identified as the "Property Trustee" in
the Trust Agreement, solely in its capacity as Property Trustee of the Texas
Instruments Trust under the Trust Agreement and not in its individual capacity,
or its successor in interest in such capacity, or any successor property
trustee appointed as therein provided.
"Redemption Date", when used with respect to any Debenture to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Debentures of a series means, unless otherwise
provided pursuant to Section 3.01 with respect to Debentures of a series, the
date which is fifteen days next preceding such Interest Payment Date (whether
or not a Business Day).
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"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned by the Trustee from time to time to administer
its corporate trust matters, or any other officer to whom such matters may be
referred.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.05.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Debentures or to other Debt which is pari
passu with, or subordinated to, the Debentures, provided, however, that Senior
Debt shall not be deemed to include (a) any Debt of the Company which when
incurred and without respect to any election under Section 1111(b) of the
Bankruptcy Reform Act of 1978, was without recourse to the Company, (b) any
Debt of the Company to any of its Subsidiaries, (c) Debt to any employee of
the Company, (d) any liability for taxes, (e) Debt or other monetary
obligations to trade creditors created or assumed by the Company or any of its
Subsidiaries in the ordinary course of business in connection with the
obtaining of goods, materials or services and (f) the Debentures. Without
limiting the generality of the foregoing, Senior Debt shall include the 2 3/4%
Convertible Subordinated Debentures due 2002 of the Company.
"Special Event" means a Tax Event or an Investment Company Event.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity" when used with respect to any Debenture or any
installment of principal thereof or interest thereon means the date specified
in such Debenture as the fixed date on which the principal of such Debenture or
such installment of interest is due and payable.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the outstanding shares of voting stock.
For purposes of this definition, "voting stock" means stock which has voting
power for the election of directors, whether at all times or only so long as no
senior class of stock has such voting power by reason of any contingency.
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"Tax Event" means the receipt by the Texas Instruments Trust of an
Opinion of Counsel, rendered by a law firm having a recognized national tax and
securities practice, to the effect that, as a result of any amendment to, or
change (including any announced prospective change) in, the laws, (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities of the Texas Instruments Trust, there is more than an
insubstantial risk that (i) the Texas Instruments Trust is, or will be within
90 days of the date thereof, subject to United States Federal income tax with
respect to income received or accrued on the corresponding series of
Debentures, (ii) interest payable by the Company on the corresponding series of
Debentures is not, or within 90 days of the date thereof will not be,
deductible, in whole or in part, for United States Federal income tax purposes
or (iii) the Texas Instruments Trust is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Texas Instruments Common Stock" means common stock, par value $1.00,
of the Company.
"Texas Instruments Guarantee" means the guarantee by the Company of
distributions on the Preferred Securities of the Texas Instruments Trust to the
extent provided in the Guarantee Agreement, substantially in the form attached
hereto as Annex C, or substantially in such form as may be specified as
contemplated by Section 3.01 with respect to the Debentures of any series, in
each case as amended from time to time.
"Texas Instruments Trust" has the meaning specified in the first
recital of this Indenture.
"Trust Agreement" means the Trust Agreement substantially in the form
attached hereto as Annex A, as amended by the form of Amended and Restated
Trust Agreement substantially in the form attached hereto as Annex B, or
substantially in such form as may be specified as contemplated by Section 3.01
with respect to the Debentures of any series, in each case as amended from time
to time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder
and, if at any time there is more than one such Person, "Trustee" as used with
respect to the Debentures of any series shall mean the Trustee with respect to
Debentures of that series.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbb), as amended and as in effect on the date as of this
Indenture, except as provided in Section 9.05.
"Vice President" when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added
before or after the title "vice president".
SECTION 1.02. Compliance Certificate 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 (including
covenants, compliance with which constitutes a condition precedent), if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with
which constitute a condition 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 the
certificates provided pursuant to Section 10.05) 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.
SECTION 1.03. Forms of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to
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other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given to or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee, and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01) conclusive in favor of the Trustee and the
Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a Person acting in other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
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(d) The ownership of Debentures shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder or any Debenture shall bind every future
Holder of the same Debenture and the Holder of every Debenture issued upon the
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Debenture.
(f) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to take any action under
this Indenture by vote or consent. Except as otherwise provided herein, such
record date shall be the later of 30 days prior to the first solicitation of
such consent or vote or the date of the most recent list of Holders furnished
to the Trustee pursuant to Section 7.01 prior to such solicitation. If a
record date is fixed, those persons who were Holders 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, provided, however, that unless such vote or consent is obtained from the
Holders (or their duly designated proxies) of the requisite principal amount of
Outstanding Debentures prior to the date which is the 120th day after such
record date, any such vote or consent previously given shall automatically and
without further action by any Holder be canceled and of no further effect.
SECTION 1.05. Notices, Etc. to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as otherwise provided in Section
5.01 hereof) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company.
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Securities Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders 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
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with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 1.07. Conflict with Trust Indenture Act. If any provisions
of this Indenture limits, qualifies or conflicts with the duties imposed by any
of Sections 310 to 317, inclusive, of the Trust Indenture Act through operation
of Section 318(c) thereof, such imposed duties shall control.
SECTION 1.08. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this
Indenture or in the Debentures shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or
in the Debentures, express or implied, shall give to any Person, other than the
parties thereto, any Paying Agent and their successors and assigns and the
Holders of the Debentures, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Debentures
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 1.13. Non-Business Days. In any case where any Interest
Payment Date, Redemption Date, or Stated Maturity of any Debenture shall not be
a Business Day, then (notwithstanding any other provision of this Indenture or
the Debentures) payment of interest or principal need not be made on such date,
but may be made on the next succeeding Business Day and no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, until the next succeeding Business
Day, in each case with the same force and effect as if made on the Interest
Payment Date or Redemption Date or at the Stated Maturity, except that, if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day.
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ARTICLE 2
DEBENTURE FORM
SECTION 2.01. Forms Generally. The Debentures of each series and the
Trustee's certificate of authentication shall be in substantially the forms
sets forth in this Article, or in such other form or forms as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with applicable tax laws or the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Debentures,
as evidenced by their execution of the Debentures. If the form of Debentures
of any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.03
with respect to the authentications and delivery of such Debentures.
The Trustee's certificates of authentication shall be substantially in
the form set forth in this Article.
The definitive Debentures shall be printed, lithographed or engraved
or produced by any combination of these methods, if required by any Debentures
exchange on which the Debentures may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Debentures may be listed, all as
determined by the officers executing such Debentures, as evidenced by their
execution of such Debentures.
SECTION 2.02. Form of Face of Debenture. If the Debenture is an
Original Issue Discount Security, insert -- This Debenture was issued with
original issue discount for United States Federal income tax purposes. For
further information, please contact [name and title of a representative of the
Company], 13500 North Central Expressway, Dallas, Texas 75205 [telephone number
of a representative of the Company].
TEXAS INSTRUMENTS INCORPORATED
(Title of Debenture)
No. __________ $__________
CUSIP_____
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TEXAS INSTRUMENTS INCORPORATED, a corporation organized and existing
under the laws of Delaware (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to_______________, or assigns,
(the principal sum of Dollars on , ), to pay interest on
said principal sum from _____, ____ or from the most recent interest payment
date (each such date, an "Interest Payment Date") on which interest has been
paid or duly provided for, [monthly] [quarterly] [semi-annually] [if
applicable, insert - plus Additional Interest, if any] until the principal
hereof is paid or duly provided for or made available for payment [if
applicable insert- (subject to deferral as set forth herein)] in arrears on
[insert applicable Interest Payment Dates] of each year, commencing ______,
___, at the rate of __% per annum, until the principal hereof shall have become
due and payable, [if applicable, insert - and on any overdue principal and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
rate of __% per annum, compounded [monthly] [quarterly] [annually]. The amount
of interest payable for any period will be computed on the basis of [twelve
30-day months] and a [360-day] year. In the event that any date on which
interest is payable on this Debenture is not a Business Day, then a payment of
the interest on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on the date the payment was
originally payable. A "Business Day" shall mean any day other than a day on
which banking institutions in the City of New York are authorized or required
by law or executive order to remain closed or a day on which the Corporate
Trust Office of the Trustee [if applicable, insert - , or the principal office
of the Property Trustee under the Trust Agreement hereinafter referred to for
Texas Instruments Financial Trust,] is closed for business. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Debenture (or one or more Predecessor Debentures, as defined
in the Indenture) is registered at the close of business on the Regular Record
Date, for such interest installment which shall be the [insert Regular Record
Dates] (whether or not a Business Day)] [close of business on the Business Day]
next preceding such Interest Payment Date. Any such interest installment not
so punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Debenture (or one or more Predecessor Debentures) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Debentures of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Debentures of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
[If applicable, insert - The Company shall have the right at any time
during the term of this Debenture, from time to time, to extend the interest
payment period of such Debenture for up
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to consecutive [months] [quarters] with respect to each deferral period
(each an "Extension Period"), during which periods the Company shall have the
right not to make payments of interest on any Interest Payment Date, and at the
end of which the Company shall pay all interest then accrued and unpaid hereon
(together with Additional Interest thereon to the extent permitted by
applicable law); provided that during any such Extension Period, the Company
will not, and will not permit any Subsidiary to (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's outstanding capital
stock, (ii) make any payment of principal, interest or premium, if any, on or
repay, repurchase or redeem any debt securities that rank pari passu with or
junior in interest to this Debenture or make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any
Subsidiary if such guarantee ranks pari passu or junior in interest to the
Debentures or (iii) cause the conversion rights, if any, of the Holders of the
Debentures to expire (other than (a) dividends or distributions in common stock
of the Company, (b) redemptions or purchases of any rights pursuant to the
Company's Shareholders Rights Plan, or any successor to such Shareholders
Rights Plan, and the declaration of a dividend of such rights in the future,
(c) payments under the Texas Instruments Guarantee (as defined in the
Indenture), (d) purchases of Texas Instruments Common Stock related to the
issuance of Texas Instruments Common Stock under any of the Company's benefit
plans for its directors, officers or employees and (e) purchases of Texas
Instruments Common Stock required to prevent loss or secure the renewal or
reinstatement of any government license or franchise held by the Company or its
Subsidiaries). Prior to the termination of any such Extension Period, the
Company may further extend the interest payment period, provided that such
Extension Period together with all such previous and further extensions of such
Extension Period shall not exceed ___ consecutive [months] [quarters] or extend
beyond the Maturity of this Debenture. Upon the termination of any such
Extension Period and upon the payment of all accrued and unpaid interest and
any Additional Interest then due, the Company may select a new Extension
Period, subject to the above requirements. No interest shall be due and
payable during an Extension Period except at the end thereof. The Company
shall give the Holder of this Debenture and the Trustee notice of its selection
of an Extension Period at least one Business Day prior to [the Interest Payment
Date] [the earlier of (i) the date the Distributions on the Preferred
Securities are payable or (ii) the date the Property Trustee is required to
give notice to the New York Stock Exchange or other applicable self- regulatory
organization or to holders of such Preferred Securities of the record date or
the date such Distributions are payable, but in any event not less than one
Business Day prior to such record date.]]
Payment of the principal of (and premium, if any) and interest on this
Debenture will be made at the office or agency of the Company maintained for
that purpose in the United States, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts [if applicable, insert -, provided, however, that at
the option of the Company payment of interest may be made (i) by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Securities Register or (ii) by wire
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transfer in immediately available funds at such place and to such account as
may be designated by the Person entitled thereto as specified in the Securities
Register].
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payments to the
prior payment in full of all Senior Debt, and this Debenture is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney- in-fact for any and all
such purposes. Each Holder hereof, by his acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Debenture
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentification hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Debenture shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated
TEXAS INSTRUMENTS INCORPORATED
By:
[President or Vice President]
Attest:
[Secretary or Assistant Secretary]
SECTION 2.03. Form of Reverse of Debenture. This Debenture is one of
a duly authorized issue of debentures of the Company, (herein called the
"Debentures"), issued and to be issued in one or more series under a Junior
Subordinated Indenture, dated as of ___________
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__, 1996 (herein called the "Indenture"), between the Company and The First
National Bank of Chicago, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which the Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Debentures, and of the terms
upon which the Debentures are, and are to be, authenticated and delivered.
This Debenture is one of the series designated on the face hereof.
All terms used in this Debenture that are defined in the Indenture or
in the Establishing Documents (as defined in the Indenture) shall have the
meanings assigned to them in the Indenture or the Establishing Documents, as
the case may be.
[If applicable, insert- At any time on or after ________ __, ____, the
Company may, at its option, subject to the terms and conditions of Article
Eleven of the Indenture, redeem this Debenture on any Interest Payment Date
with respect thereto in whole at any time or in part from time to time, without
premium or penalty, at a redemption price equal to 100% of the principal amount
thereof plus the accrued and unpaid interest [if applicable, insert-, including
Additional Interest, if any,] to the date fixed for redemption.]
[If applicable, insert- If a Special Event in respect of the Texas
Instruments Trust shall occur and be continuing, the Company may, at its
option, redeem the corresponding series of Debentures on any Interest Payment
Date falling within 90 days of the occurrence of such Special Event, in whole
but not in part, subject to the provisions of Section 11.07 and the other
provisions of Article Eleven of the Indenture. The redemption price for any
Debenture so redeemed shall be equal to 100% of the principal amount thereof
plus accrued and unpaid interest, including Additional Interest, if any, to the
date fixed for redemption.]
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
[If the Debenture is not an Original Issue Discount Security, - If an
Event of Default with respect to Debentures of this series shall occur and be
continuing, the principal of the Debentures of this series may be declared due
and payable in the manner, with the effect and subject to the conditions
provided in the Indenture.]
[If the Debenture is an Original Issue Discount Security, - If an
Event of Default with respect to Debentures of this series shall occur and be
continuing, an amount of principal of the Debentures of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture. Such amount shall be equal to [ - insert
formula for determining the amount]. Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to
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the extent that the payment of such interest shall be legally enforceable), all
of the Company's obligations in respect of the payment of the principal of and
interest, if any, on the Debentures of this series shall terminate.]
The Indenture contains provisions for satisfaction, discharge and
defeasance at any time of the entire indebtedness of this Debenture upon
compliance by the Company with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debentures of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Debentures
of each series at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Debentures of each series at the time Outstanding,
on behalf of the Holders of all Debentures of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver shall be conclusive and binding upon the Holder of this Debenture and
upon all future Holders of this Debenture and of any Debenture issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Debenture.
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to Debentures of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Debentures of that series may declare the principal amount (or, if the
Debentures of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
the Debentures of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), provided that,
in the case of the Debentures of a series issued to the Texas Instruments
Trust, if upon an Event of Default, the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Debentures of that series fail to
declare the principal of all the Debentures of that series to be immediately
due and payable, the holders of at least 25% in aggregate liquidation amount of
the corresponding series of Preferred Securities then outstanding shall have
such right by a notice in writing to the Company and the Trustee; and upon any
such declaration such principal amount (or specified amount) of and the accrued
interest (including any Additional Interest) on all the Debentures of such
series shall become immediately due and payable, provided that the payment of
principal and interest (including any Additional Interest) on such Debentures
shall remain subordinated to the extent provided in Article Thirteen of the
Indenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and
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unconditional, to pay the principal of (and premium, if any) and interest on
this Debenture at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Debenture is registrable in the
Securities Register, upon surrender of this Debenture for registration of
transfer at the office or agency of the Company maintained under Section 10.02
of the Indenture duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees. No service charge shall be made for
any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Debentures of this series are issuable only in registered form
without coupons in denominations of $50 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Debentures of this series are exchangeable for a like aggregate principal
amount of Debentures of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
[If applicable, insert- The Company and, by its acceptance of this
Debenture or a beneficial interest therein, the Holder of, and any Person that
acquires a beneficial interest in, this Debenture agree that for United States
Federal, state and local tax purposes it is intended that this Debenture
constitute indebtedness.]
THE INDENTURE AND THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES THEREOF.
SECTION 2.04. Additional Provisions Required in Global Debenture.
Any Global Debenture issued hereunder shall, in addition to the provisions
contained in Sections 2.02 and 2.03 bear a legend in substantially the
following form:
"This Debenture is a Global Debenture within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the
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Depositary or its nominee only in the limited circumstances described in the
Indenture and 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."
SECTION 2.05. Form of Trustee's Certificate of Authentication. This
is one of the Debentures of the series designated in the within mentioned
Indenture referred to therein.
--------------------------------------
as Trustee
By:
Authorized officer
ARTICLE 3
THE DEBENTURES
SECTION 3.01. Title and Terms. The aggregate principal amount of
Debentures which may be authenticated and delivered under this Indenture is
unlimited.
The Debentures may be issued in one or more series. There shall be
established in the Establishing Documents prior to the issuance of Debentures
of a series:
(a) the title of the Debentures of such series, which
shall distinguish the Debentures of the series from all other
Debentures;
(b) the limit, if any, upon the aggregate principal
amount of the Debentures of such series which may be authenticated and
delivered under this Indenture (except for Debentures authenticated
and delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Debentures of the series pursuant to Section 3.04,
3.05, 3.06, 9.06 or 11.06); provided, however, that the authorized
aggregate principal amount of such series may be increased above such
amount by a Board Resolution to such effect;
(c) the Stated Maturity or Maturities on which the
principal of the Debentures of such series is payable or the method of
determination thereof;
(d) the rate or rates, if any, at which the Debentures of
such series shall bear interest, if any, the rate or rates and extent
to which Additional Interest, if any, shall be payable in respect of
any Debentures of such series, the Interest Payment Dates on which
such interest shall be payable, the right, pursuant to Section 3.11 or
as otherwise set forth therein, of the Company to defer or extend an
Interest Payment Date, and the Regular
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Record Date for the interest payable on any Interest Payment Date or
the method by which any of the foregoing shall be determined;
(e) the place or places where the principal of (and
premium, if any) and interest on the Debentures of such series shall
be payable, the place or places where the Debentures of such series
may be presented for registration of transfer or exchange, and the
place or places where notices and demands to or upon the Company in
respect of the Debentures of such series may be made;
(f) the period or periods within or the date or dates on
which, if any, the price or prices at which and the terms and
conditions upon which the Debentures of such series may be redeemed,
in whole or in part, at the option of the Company;
(g) the obligation or the right, if any, of the Company
to redeem, repay or purchase the Debentures of such series pursuant to
any sinking fund, amortization or analogous provisions or at the
option of a Holder thereof and the period or periods within which, the
price or prices at which, the currency or currencies (including
currency unit or units) in which and the other terms and conditions
upon which Debentures of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(h) the denominations in which any Debentures of such
series shall be issuable, if other than denominations of $50 and any
integral multiple thereof;
(i) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of (and
premium, if any) and interest, if any, on the Debentures of the series
shall be payable, or in which the Debentures of the series shall be
denominated;
(j) the additions, modifications or deletions, if any, in
the Events of Default or covenants of the Company set forth herein
with respect to the Debentures of such series;
(k) if other than the principal amount thereof, the
portion of the principal amount of Debentures of such series that
shall be payable upon declaration of acceleration of the Maturity
thereof;
(l) the additions or changes, if any, to this Indenture
with respect to the Debentures of such series as shall be necessary to
permit or facilitate the issuance of the Debentures of such series in
bearer form, registrable or not registrable as to principal, and with
or without interest coupons;
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(m) any index or indices used to determine the amount of
payments of principal of and premium, if any, on the Debentures of
such series or other manner in which such amounts will be determined;
(n) the issuance of a temporary Global Debenture
representing all of the Debentures of such series and exchange of such
temporary Global Debenture for definitive Debentures of such series;
(o) whether the Debentures of the series shall be issued
in whole or in part in the form of one or more Global Debentures and,
in such case, the Depositary for such Global Debentures, which
Depositary shall be a clearing agency registered under the Securities
Exchange Act of 1934, as amended;
(p) the appointment of any Paying Agent or Agents for the
Debentures of such series;
(q) the terms and conditions if any, upon which such
Debentures may be convertible into or exchanged for Texas Instruments
Common Stock or other securities of any kind, including the initial
conversion or exchange period, the circumstances under which any such
conversion or exchange right may expire, and any other provision in
addition to or in lieu of those set forth in this Indenture;
(r) the form or forms of the Trust Agreement, Amended and
Restated Trust Agreement and Guarantee Agreement, if different from
the forms attached hereto as Annexes A, B and C, respectively;
(s) the relative degree, if any, to which the Debentures
of the series shall be senior to or be subordinated to other series of
Debentures in right of payment, whether such other series of
Debentures are Outstanding or not; and
(t) any other terms of the Debentures of such series
(which terms shall not be inconsistent with the provisions of this
Indenture).
All Debentures of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided herein or in
or pursuant to such Board Resolution and set forth in such Officers'
Certificate or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
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SECTION 3.02. Denominations. The Debentures of each series shall be
in registered form without coupons and shall be issuable in denominations of
$50 and any integral multiple thereof, unless otherwise specified as
contemplated by Section 3.01.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Debentures shall be executed on behalf of the Company by its President or one
of its Vice Presidents under its corporate seal reproduced or impressed thereon
and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Debentures may be manual or
facsimile.
Debentures bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debentures or did not
hold such offices at the date of such Debentures. At any time and from time to
time after the execution and delivery of this Indenture, the Company may
deliver Debentures executed by the Company to the Trustee for authentication.
Debentures may be authenticated on original issuance from time to time and
delivered pursuant to such procedures acceptable to the Trustee ("Procedures")
as may be specified from time to time by Company Order. Procedures may
authorize authentication and delivery pursuant to oral instructions of the
Company or a duly authorized agent, which instructions shall be promptly
confirmed in writing.
Prior to the delivery of a Debenture in any such form to the Trustee
for authentication, the Company shall deliver to the Trustee the following:
(a) A Company Order requesting the Trustee's authentication and
delivery or all or a portion of the Debentures of such series, and if less than
all, setting forth procedures for such authentication;
(b) The Board Resolution by or pursuant to which such form of
Debenture has been approved, and the Board Resolution, if any, by or pursuant
to which the terms of the Debentures of such series have been approved, and, if
pursuant to a Board Resolution, an Officers' Certificate describing the action
taken;
(c) An Officers' Certificate dated the date such certificate is
delivered to the Trustee, stating that all conditions precedent provided for in
this Indenture relating to the authentication and delivery of Debentures in
such form and with such terms have been complied with; and
(d) An Opinion of Counsel stating that (i) the form of such
Debentures has been duly authorized and approved in conformity with the
provisions of this Indenture; (ii) the terms of such Debentures have been duly
authorized and determined in conformity with the provisions of this Indenture,
or, if such terms are to be determined pursuant to Procedures, when so
determined
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such terms shall have been duly authorized and determined in conformity with
the provisions of this Indenture; and (iii) Debentures in such form when
completed by appropriate insertions and executed and delivered by the Company
to the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this Indenture
within the authorization as to aggregate principal amount established from time
to time by the Board of Directors and sold in the manner specified in such
Opinion of Counsel, will be the legal, valid and binding obligations of the
Company entitled to the benefits of this Indenture, subject to applicable
bankruptcy, reorganization, insolvency and similar laws generally affecting
creditors' rights and to general equitable principles, except as enforcement
thereof may be limited by (A) requirements that a claim with respect to any
Debentures denominated other than in Dollars (or a Foreign Currency or currency
unit judgment in respect of such claim) be converted into Dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of payments in
Foreign Currencies or currency units or payments outside the United States and
subject to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Debentures; provided however,
that the Trustee shall be entitled to receive the documents referred to in
clauses (b), (c) and (d) above only at or prior to the first request of the
Company to the Trustee to authenticate Debentures of such series.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such
Debenture a certificate of authentication substantially in the form provided for
herein executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Debenture shall be conclusive evidence,
and the only evidence, that such Debenture has been duly authenticated and
delivered hereunder.
SECTION 3.04. Temporary Debentures. Pending the preparation of
definitive Debentures of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Debentures which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any denomination, substantially of the tenor of the definitive Debentures of
such series in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Debentures may determine, as evidenced by their execution of
such Debentures.
If temporary Debentures of any series are issued, the Company will
cause definitive Debentures of such series to be prepared without unreasonable
delay. After the preparation of definitive Debentures, the temporary
Debentures shall be exchangeable for definitive Debentures upon surrender of
the temporary Debentures at the office or agency of the Company designated for
the purpose without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Debentures, the Company shall execute and the Trustee
shall authenticate and
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deliver in exchange therefor a like principal amount of definitive Debentures
of the same series of authorized denominations having the same Original Issue
Date and Stated Maturity and having the same terms as such temporary
Debentures. Until so exchanged, the temporary Debentures shall in all respects
be entitled to the same benefits under this Indenture as definitive Debentures.
SECTION 3.05. Registration, Transfer and Exchange. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee a register in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Debentures and of transfers of
Debentures. Such register is herein sometimes referred to as the "Securities
Register." The Trustee is hereby appointed "Securities Registrar" for the
purpose of registering Debentures and transfers of Debentures as herein
provided.
Upon surrender for registration of transfer of any Debenture at the
office or agency of the Company designated for that purpose the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debentures of the same
series of any authorized denominations, of a like aggregate principal amount,
of the same Original Issue Date and Stated Maturity and having the same terms.
At the option of the Holder, Debentures may be exchanged for other
Debentures of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms, upon surrender of the Debentures to be exchanged at
such office or agency. Whenever any Debentures are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Debentures which the Holder making the exchange is entitled to
receive.
All Debentures issued upon any transfer or exchange of Debentures
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such transfer or exchange.
Every Debenture presented or surrendered for transfer or exchange
shall (if so required by the Company or the Securities Registrar) be duly
endorsed, or be accompanied by a written instrument 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.
No service charge shall be made to a Holder for any transfer or
exchange of Debentures, 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 transfer or exchange of Debentures.
Notwithstanding any of the foregoing, any Global Debenture of a series
shall be exchangeable pursuant to this Section 3.05 for Debentures registered
in the names of Persons
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other than the Depositary for such Debenture or its nominee only if (a) such
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Debenture or if at any time such Depositary ceases
to be a clearing agency registered under the Securities Exchange Act of 1934,
as amended, (b) the Company executes and delivers to the Trustee a Company
Order that such Global Debenture shall be so exchangeable or (c) there shall
have occurred and be continuing an Event of Default with respect to the
Debentures of such series. Any Global Debenture that is exchangeable pursuant
to the preceding sentence shall be exchangeable for Debentures registered in
such names as such Depositary shall direct.
Notwithstanding any other provisions in this Indenture, a Global
Debenture may not be transferred except as a whole by the Depositary with
respect to such Global Debenture to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Debenture of
any series during a period beginning at the opening of business 15 days before
the day of selection for redemption of Debentures pursuant to Article Eleven
and ending at the close of business on the day of mailing of notice of
redemption or (b) to transfer or exchange any Debenture so selected for
redemption in whole or in part, except, in the case of any Debenture to be
redeemed in part, any portion thereof not to be redeemed.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Debentures. If
any mutilated Debenture is surrendered to the Trustee together with such
security or indemnity as may be required by the Company or the Trustee to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Debenture of the same issue
and series of like tenor and principal amount, having the same Original Issue
Date and Stated Maturity and bearing the same Interest Rate as such mutilated
Debenture, and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any
Debenture, and (b) such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or
the Trustee that such Debenture has been acquired by a bona fide purchaser, the
issuing Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Debenture, a new Debenture of the same issue and series of like tenor and
principal amount, having the same Original Issue Date and Stated Maturity and
bearing the same Interest Rate as such destroyed, lost or stolen Debenture, and
bearing a number not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture 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 Debentures duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Interest on any Debenture of any series which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date, shall be paid to the
Person in whose name that Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the Regular Record Date for such
interest in respect of Debentures of such series, except that, unless otherwise
provided in the Debentures of such series, interest payable on the Stated
Maturity of a Debenture shall be paid to the Person to whom principal is paid.
The initial payment of interest on any Debenture of any series which is issued
between a Regular Record Date and the related Interest Payment Date shall be
payable as provided in the Establishing Documents pursuant to Section 3.01 with
respect to the related series of Debentures.
Any interest on any Debenture which is payable, but is not timely paid
or duly provided for, on any Interest Payment Date for Debentures of such
series (herein called "Defaulted Interest"), shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Debentures of
such series in respect of which interest is in default (or their
respective Predecessors Debentures) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Debenture and the date
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of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder of a Debenture of such series
at the address of such Holder as it appears in the Securities Register
not less than 10 days prior to such Special Record Date. The Trustee
shall in the name and at the expense of the Company, cause a similar
notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, the City of New York, but
such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Debentures of such
series (or their respective Predecessor Debentures) are registered on
such Special Record Date and shall no longer be payable pursuant to
the following clause (b).
(b) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures of the
series in respect of which interest is in default may be listed and,
upon such notice as may be required by such exchange (or by the
Trustee if the Debentures are not listed), if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon transfer of or in exchange for or in lieu
of any other Debenture shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Debenture.
SECTION 3.08. Persons Deemed Owners. The Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name any
Debenture is registered as the owner of such Debenture for the purpose of
receiving payment of principal of and (subject to Section 3.07) interest on
such Debenture and for all other purposes whatsoever, whether or not such
Debenture be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
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SECTION 3.09. Cancellation. All Debentures surrendered for payment,
redemption, conversion, transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such
Debentures and Debentures surrendered directly to the Trustee for any such
purpose shall be promptly canceled by it. The Company may at any time deliver
or cause to be delivered to the Trustee for cancellation any Debentures
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debentures so delivered shall be
promptly canceled by the Trustee. No Debentures shall be authenticated in lieu
of or in exchange for any Debentures canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Debentures shall
be destroyed by the Trustee and upon request, the Trustee shall deliver to the
Company a certificate of such destruction.
SECTION 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.01 for Debentures of any series,
interest on the Debentures of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 3.11. Deferrals of Interest Payment Dates. If specified as
contemplated by Section 3.01 with respect to the Debentures of a particular
series, the Company shall have the right, at any time during the term of such
series, from time to time to extend the interest payment period for such
Debentures for such period or periods as may be specified as contemplated by
Section 3.01 (each, an "Extension Period"), during which periods the Company
shall have the right not to make payments of interest on any Interest Payment
Date, and at the end of such Extension Period the Company shall pay all
interest then accrued and unpaid thereon (together with Additional Interest
thereon, if any, at the rate specified for the Securities of such series to the
extent permitted by applicable law); provided, however, that during any such
Extension Period, the Company shall not, and shall cause any Subsidiary not to,
(a) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company's
outstanding capital stock, (b) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities that
rank pari passu with or junior in interest to the Debentures of such series or
make any guarantee payments with respect to any guarantee by the Company of the
debt securities of any Subsidiary if such guarantee ranks pari passu or junior
in interest to the Debentures or (c) cause the Conversion Rights, if any, of
the Holders of the Debentures to expire (other than (i) dividends or
distributions in common stock of the Company, (ii) redemptions or purchases of
any rights pursuant to the Company's Shareholders Rights Plan, or any successor
to such Shareholders Rights Plan, and the declaration of a dividend of such
rights in the future, (iii) payments under the Texas Instruments Guarantee,
(iv) purchases of Texas Instruments Common Stock related to the issuance of
Texas Instruments Common Stock under any of the Company's benefit plans for its
directors, officers or employees and (v) purchases of Texas Instruments Common
Stock required to prevent loss or secure the renewal or reinstatement of any
government license or franchise held by the Company or the Subsidiaries).
Prior to the termination of any such Extension Period, the Company may further
extend the interest payment period, provided that
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such Extension Period together with all such previous and further extensions of
such Extension Period shall not exceed the period or periods so specified or
extend beyond the Maturity of such Debentures. Upon termination of any
Extension Period and upon the payment of all accrued and unpaid interest and
any Additional Interest then due, the Company may select a new Extension
Period, subject to the above requirements. No interest shall be due and
payable during an Extension Period, except at the end thereof. The Company
shall give the Holders of the Debentures of such series and the Trustee notice
of its selection of such Extension Period at least one Business Day prior to
the Interest Payment Date or, with respect to the Debentures of a series issued
to the Texas Instruments Trust, prior to the earlier of (i) the date the
Distributions on the Preferred Securities of the Texas Instruments Trust are
payable or (ii) the date the Property Trustee of the Texas Instruments Trust is
required to give notice to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of such Preferred Securities of the
record date or the date such Distributions are payable, but in any event not
less than one Business Day prior to such record date.
The Trustee shall promptly give notice of the Company's selection of
such Extension Period to the Holders of the outstanding Debentures of such
series.
SECTION 3.12. Right of Set-off. With respect to the Debentures of a
series issued to the Texas Instruments Trust, notwithstanding anything to the
contrary in the Indenture, the Company shall have the right to set-off any
payment it is otherwise required to make thereunder in respect of any such
Debenture to the extent the Company has theretofore made, or is concurrently on
the date of such payment making, a payment relating to such Debenture under the
Texas Instruments Guarantee.
SECTION 3.13. Agreed Tax Treatment. Each Debenture issued hereunder
shall provide that the Company and, by its acceptance of a Debenture or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Debenture agree that for United States Federal,
state and local tax purposes it is intended that such Debenture constitute
indebtedness.
SECTION 3.14. Cusip Numbers. The Company in issuing the Debentures
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Debentures or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Debentures, and any such
redemption shall not be affected by any defect in or omission of such numbers.
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ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to (i) any surviving
rights of transfer, substitution and exchange of Debentures, (ii) rights
hereunder of Holders to receive payments of principal of (and premium, if any)
and interest on the Debentures and other rights, duties and obligations of the
Holders as beneficiaries hereof with respect to the amounts, if any, so
deposited with the Trustee and (iii) the rights and obligations of the Trustee
hereunder), and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(a) either
(i) all Debentures theretofore authenticated and
delivered (other than (i) Debentures which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
3.06 and (ii) Debentures for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.03) have been delivered to the Trustee for
cancellation; or
(ii) all such Debentures not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year of the date of deposit, and the
Company, in the case of (i) or (ii) above, has deposited or
caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies
in which the Debentures of such series are payable sufficient
to pay and discharge the entire indebtedness on such
Debentures not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such
deposit (in the case of Debentures which have become due and
payable) or to the Stated Maturity;
(C) have been tendered for conversion;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money
shall have been deposited with the Trustee pursuant to subclause (ii) of clause
(a) of this Section, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money. Subject to the provisions
of the last paragraph of Section 10.03, all money deposited with the Trustee
pursuant to Section 4.01 or money or Government Obligations deposited with the
Trustee pursuant to Section 4.03, or received by the Trustee in respect of
Government Obligations deposited with the Trustee pursuant to Section 4.03,
shall be held in trust and applied by it, in accordance with the provisions of
the Debentures and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money or obligations have
been deposited with or received by the Trustee; provided, however, such moneys
need not be segregated from other funds except to the extent required by law.
SECTION 4.03. Satisfaction, Discharge and Defeasance of Debentures of
Any Series. Unless otherwise provided in the Establishing Documents, the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Outstanding Debentures of any such series and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of such indebtedness, when
(a) with respect to all Outstanding Debentures of such
series,
(i) the Company has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as trust
funds in trust for such purpose an amount sufficient to pay
and discharge the entire indebtedness on all Outstanding
Debentures of such series for principal (and premium, if any)
and interest (including any Additional Interest) to the Stated
Maturity or any Redemption Date as contemplated by the
penultimate paragraph of this Section 4.03, as the case may
be; or
(ii) the Company has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as
obligations in trust for such purpose an amount of Government
Obligations as will, in the written opinion of independent
public accountants delivered to the Trustee, together with
predetermined and certain income to accrue thereon, without
consideration of any reinvestment thereof, be
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sufficient to pay and discharge when due the entire
indebtedness on all Outstanding Debentures of such series for
principal (and premium, if any) and interest (including any
Additional Interest) to the Stated Maturity or any Redemption
Date as contemplated by the penultimate paragraph of this
Section 4.03, as the case may be; and
(b) the Company has paid or caused to be paid all other
sums payable with respect to the Outstanding Debentures of such
series; and
(c) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of the entire indebtedness on all Outstanding Debentures
of any such series have been complied with.
Any deposits with the Trustee referred to in Section 4.03(a) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance reasonably satisfactory to the Trustee. If any
Outstanding Debentures of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the selection of Debentures
for Redemption and the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company. If the Debentures of such series are
not to become due and payable at their Stated Maturity or upon call for
redemption within one year of the date of deposit, then the Company shall give,
not later than the date of such deposit, notice of such deposit to the Holders
of Debentures of such series.
Upon the satisfaction of the conditions set forth in this Section 4.03
with respect to all the Outstanding Debentures of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided, that the Company shall not be discharged
from any payment obligations in respect of Debentures of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
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ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default. "Event of Default", wherever used
herein with respect to the Debentures of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any interest upon any
Debenture of that series, including any Additional Interest in respect
thereof, when it becomes due and payable, and continuance of such
default for a period of 30 days (subject to the deferral of any due
date in the case of an Extension Period); or
(b) default in the payment of the principal of (or
premium, if any, on) any Debenture of that series at its Maturity; or
(c) failure on the part of the Company duly to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Company with respect to that series
contained in such Debentures or otherwise established with respect to
that series of Debentures pursuant to Section 3.01 hereof or contained
in this Indenture (other than a covenant or agreement which has been
expressly included in this Indenture solely for the benefit of one or
more series of Debentures other than such series) and continuance for
such failure for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied and stating
that such notice is a "Notice of Default" hereunder, shall have been
given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by a Holder or Holders of at least
25% in aggregate principal amount of the Debentures of that series at
the time Outstanding or the holder or holders of at least 25% in
aggregate liquidation preference of Preferred Securities of the series
related to such series of Debentures;
(d) if applicable to the Debentures of that series,
failure by the Company to issue the Texas Instruments Common Stock
upon an election by the Holder or Holders of such Debentures to
convert such Debentures into shares of Texas Instruments Common Stock;
(e) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of the Company under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of
its property or
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ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(f) the institution by the Company of proceedings to be
adjudicated as bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or Sate bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the
filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due and its willingness to be adjudicated as bankrupt,
or the taking of corporate action by the Company in furtherance of any
such action; or
(g) any other Event of Default as set forth in the
Establishing Documents with respect to Debentures of that series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default with respect to Debentures of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Debentures of that series may declare the principal amount (or, if the
Debentures of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
the Debentures of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), provided that,
in the case of the Debentures of a series issued to the Texas Instruments
Trust, if upon an Event of Default, the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Debentures of that series fail to
declare the principal of all the Debentures of that series to be immediately
due and payable, the holders of at least 25% in aggregate liquidation amount of
the corresponding series of Preferred Securities then outstanding shall have
such right by a notice in writing to the Company and the Trustee; and upon any
such declaration such principal amount (or specified amount) of and the accrued
interest (including any Additional Interest) on all the Debentures of such
series shall become immediately due and payable, provided that the payment of
principal and interest (including any Additional Interest) on such Debentures
shall remain subordinated to the extent provided in Article Thirteen.
At any time after such a declaration of acceleration with respect to
Debentures of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Debentures of that series, or the holders of a least 25% in
aggregate liquidation amount of the corresponding series of Preferred
Securities then
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outstanding, as the case may be, by written notice to the Company and the
Trustee may rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest
(including any Additional Interest) on all Debentures of that
series,
(B) the principal of (and premium, if any, on)
any Debentures of that series which have become due otherwise
than by such declaration of acceleration and interest thereon
at the rate borne by the Debentures, and
(C) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(ii) all Events of Default with respect to Debentures of that
series, other than the non-payment of the principal of Debentures of that
series which has become due solely by such acceleration, have been cured or
waived as provided in Section 5.13.
The holders of a majority in aggregate liquidation preference of the
Preferred Securities may, on behalf of the holders of all the Preferred
Securities, waive any past Event of Default, except an Event of Default
described in Sections 5.01(a) and 5.01(b) (unless such Event of Default has been
cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the
Trustee) or an Event of Default in respect of a covenant or provision which
under this Indenture cannot be modified or amended without the consent of the
holder of each outstanding Debenture. No such rescission or waiver shall
affect any subsequent default or impair any right consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Debentures
of a series all or part of which is represented by a Global Debenture, a record
date shall be established for determining Holders of Outstanding Debentures of
such series entitled to join in such notice, which record date shall be at the
close of business on the day the Trustee receives such notice. The Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to join in such notice, whether or not such Holders remain
Holders after such record date; provided, that, unless such declaration of
acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice which has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 5.02.
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SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(a) default is made in the payment of any installment of interest
(including any Additional Interest) on any Debenture when such interest becomes
due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (and
premium, if any, on) any Debenture at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debentures, the whole amount then due and payable on such
Debentures for principal, including any sinking fund payment or analogous
obligations (and premium, if any) and interest (including any Additional
Interest), including, to the extent that payment of such interest shall be
lawful, interest on any overdue principal (and premium, if any) and on any
overdue installments of interest (including any Additional Interest) at the
rate borne by the Debentures; and, in addition thereto, all amounts owing the
Trustee under Section 6.07.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgement or final decree, and may enforce the same
against the Company or any other obligor upon the Debentures and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Debentures, wherever
situated.
If an Event of Default with respect to Debentures of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debentures of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Debentures or
the property of the Company or of such other obligor or their creditors:
(a) the Trustee (irrespective of whether the principal of the
Debentures of any series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue
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principal (and premium, if any) or interest (including any Additional Interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including any Additional
Interest) owing and unpaid in respect to the Debentures and to file
such other papers or documents as may be necessary or advisable and to
take any and all actions as are authorized under the Trust Indenture
Act in order to have the claims of the Trustee and any predecessor to
the Trustee under Section 6.07 and of the Holders allowed in any such
judicial proceedings;
(ii) and in particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same in
accordance with Section 5.06; and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee for
distribution in accordance with Section 5.06, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it and any predecessor Trustee under Section
6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.05. Trustee May Enforce Claim Without Possession of
Debentures. All rights of action and claims under this Indenture or the
Debentures may be prosecuted and enforced by the Trustee without the possession
of any of the Debentures or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgement
shall, after provision for the payment of all the amounts owing the Trustee and
any predecessor Trustee under Section 6.07, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgement has been recovered.
SECTION 5.06. Application of Money Collected. Any money or property
collected or to be applied by the Trustee with respect to a series of
Debentures pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money or property on account of principal (or premium, if any) or interest
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(including any Additional Interest), upon presentation of the Debentures and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid upon such
series of Debentures for principal (and premium, if any) and interest
(including any Additional Interest), in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such series of Debentures
for principal (and premium, if any) and interest (including any Additional
Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.07. Limitation on Suits. No Holder of any Debentures of
any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a receiver,
assignee, trustee, liquidator, sequestrator (or other similar official) or for
any other remedy hereunder, unless:
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Debentures of that series;
(b) the Holders of not less than 25% in principal amount
of the Outstanding Debentures of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Debentures of
that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of Debentures, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
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SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section 3.07) interest (including any Additional Interest) on such
Security on the respective Stated Maturities expressed in such Security and to
institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder. For so long as any
Preferred Securities remain Outstanding, to the fullest extent permitted by law
and subject to the terms of this Indenture and the Trust Agreement, upon an
Event by Default specified in Section 5.01 or 5.02, any holder of Preferred
Securities shall have the right to institute a proceeding directly against the
Company, for enforcement of payment to such holder of the principal amount of
or interest on Debentures having a principal amount equal to the liquidation
preference of the Preferred Securities of such holder (a "Direct Action"). In
connection with any such Direct Action, the rights of the holders of the Common
Securities will be subrogated to the rights of any holder of the Preferred
Securities to the extent of any payment made by the Company to such holder of
Preferred Securities as a result of such Direct Action. Except as set forth in
this Section, the holders of Preferred Securities shall have no right to
exercise directly any right or remedy available to the Holders of, or in
respect of, the Debentures.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case the Company, the Trustee and the Holders shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise
provided in the last paragraph of Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. Except as otherwise
provided in the last paragraph of Section 3.06, no delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
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Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in
principal amount of the Outstanding Debentures of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, with respect to the Debentures of such series, provided that:
(a) such direction shall not be in conflict with any rule
of law or with this Indenture,
(b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.01, the
Trustee shall have the right to decline to follow such direction if
the Trustee in good faith shall, by a Responsible Officer or Officers
of the Trustee, determine that the proceeding so directed would be
unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to Debentures of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Debentures of such series entitled to join
in such notice, which record date shall be at the close of business on the day
the Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date;
provided, that, unless the Holders of a majority in principal amount of the
Outstanding Debentures of such series shall have joined in such notice prior to
the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new notice
identical to a notice which has been canceled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.12.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less than
a majority in principal amount of the Outstanding Debentures of any series may
on behalf of the Holders of all the Debentures of such series waive any past
default hereunder with respect to such series and its consequences, except a
default:
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(a) in the payment of the principal of (or premium, if
any) or interest (including any Additional Interest) on any Debenture
of such series, or
(b) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Debenture of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Debenture by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken 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; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Debentures of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest (including any Additional Interest) on any Debenture on or
after the respective Stated Maturities expressed in such Debenture.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default.
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(i) 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
(ii) 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 provisions 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) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
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
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) 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; and
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of Holders pursuant to Section 5.12 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 the Debentures
of such series.
(d) 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 there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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(e) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.02. Notice of Defaults. Within 90 days after actual
knowledge by a Responsible Officer of the Trustee of the occurrence of any
default hereunder with respect to the Debentures of any series, the Trustee
shall transmit by mail to all Holders of Debentures of such series, as their
names and addresses appear in the Securities Register, notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including any Additional
Interest) on any Debenture of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Debentures of such series; and provided, further,
that, except in the case of any default of the character specified in Section
5.01(c), no such notice to Holders of Debentures of such series shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Debentures of
such series.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions
of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
Debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this
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Indenture, unless such holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which 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,
indenture, Debenture or other paper or document, but the Trustee in its
discretion may make such inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make such inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(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 any part of any agent or attorney appointed with due care by it
hereunder.
SECTION 6.04. Not Responsible for Recitals or Issuance of Debentures.
The recitals contained herein and in the Debentures, except the Trustee's
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 Debentures. The Trustee shall not be accountable for the
use or application by the Company of the Debentures or the proceeds thereof.
SECTION 6.05. May Hold Debentures. The Trustee, any Paying Agent,
Securities Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Debentures and, subject
to Sections 6.08 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Securities Registrar
or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability of interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07. Compensation and Reimbursement. The Company agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in such amounts
as the Company and the Trustee shall agree from time to time (which
compensation shall be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
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(b) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expenses,
disbursements or advances as may be attributable to its negligence or
bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel) incurred without negligence or bad faith, arising out of or
in connection with the acceptance or administration of this trust or
the performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. This indemnification shall survive the termination
of this Agreement.
To secure the Company's payment obligations in this Section, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Debentures on all money or property held or collected by the Trustee. Such
lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.01(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Reform Act of 1978 or a successor statute.
SECTION 6.08. Disqualification; Conflicting Interests. The Trustee
for the Debentures of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act. Nothing herein shall
prevent the Trustee from filing with the Commission the application referred to
in the second to last paragraph of Section 310(b) of the Trustee Indenture Act.
The Trust Agreement and the Texas Instruments Guarantee shall be deemed to be
specifically described in this Indenture for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the
laws of the United States of America or of any State, Territory or the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority, or
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(b) 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,
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then, to the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. 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 Debentures of any series issued
hereunder.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the
Debentures of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee 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 with respect to the
Debentures of such series.
(c) The Trustee may be removed at any time with respect to the
Debentures of any series by Act of the Holders of a majority in principal
amount of the Outstanding Debentures of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08
after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Debenture for at least six months, or
(ii) the Trustee shall cease to be eligible under Section
6.09 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
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(iii) the Trustee shall become incapable of acting or shall
be adjudged as bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by Board Resolution may remove the
Trustee, or (B) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Debenture for at least six months may, on behalf of himself and all
other similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Debentures of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee with respect to the
Debentures of that or those series. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debentures of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debentures of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
the Debentures of such series and supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Debentures of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Debenture for at least six months may, subject to Section
5.14, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Debentures of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debentures of any series and each
appointment of a successor Trustee with respect to the Debentures of any series
by mailing written notice of such event by first-class mail, postage prepaid,
to the Holders of Debentures of such series as their name and addresses appear
in the Securities Register. Each notice shall include the name of the
successor Trustee with respect to the Debentures of such series and the address
of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Debentures, every such successor Trustee so appointed 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 the 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,
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transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Debentures of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Debentures of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Debentures of that or those series to which the appointment of such
successor Trustee relates, (ii) if the retiring Trustee is not retiring with
respect to all Debentures, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debentures of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (iii) 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 trust hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of the trust hereunder separate and apart from the
trust hereunder administered by any other such Trustee and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts, duties of the retiring
trustee with respect to the Debentures of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debentures of that or those series to
which the appointment of such successor Trustee relates.
(c) 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 rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the
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execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Debentures shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Debentures so authenticated, and in case any Debentures shall
not have been authenticated, any successor to the Trustee may authenticate such
Debentures either in the name of any predecessor Trustee or in the name of such
successor Trustee, and in all cases the certificate of authentication shall
have the full force which it is provided anywhere in the Debentures or in this
Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Company. If
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Debentures), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Debentures which shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof, and
Debentures so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Debentures by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of
the United States of America, or of any State, Territory or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.06 to all Holders of Debentures
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debentures of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Debentures referred to in the within mentioned
indenture.
--------------------------------------
--------------------------------------
As Trustee
By:
-----------------------------------
As Authenticating Agent
By:
-----------------------------------
Authorized Officer
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ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after January 1 and July
1, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such January 1 and July 1, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, excluding from any such list names and addresses
received by the Trustee in its capacity as Securities Registrar.
SECTION 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debentures, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Debentures, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) The Trustee shall transmit
to Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act, at the times
and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance of
Debentures under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange or
self regulatory organization upon which the
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Debentures are listed and also with the Commission. The Company will notify
the Trustee whenever the Debentures are listed on any stock exchange or
self-regulatory organization.
SECTION 7.04. Reports by Company. The Company shall file with the
Trustee and with the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided in
the Trust Indenture Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 shall be filed with the
Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company shall continue to file with the Commission
and provide the Trustee and Holders with the annual reports and the
information, documents and other reports which are specified in Sections 13 and
15(d) of the Securities Exchange Act of 1934. The Company also shall comply
with the other provisions of Trust Indenture Act Section 314(a).
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(a) in case the Company shall consolidate with or merge
into another corporation or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety
shall be a corporation organized and existing under the laws of the
United States of America or any State or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and
interest (including any Additional Interest) on all the Debentures and
the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(b) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall have happened
and be continuing;
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(c) in the case of the Debentures of a series issued to
the Texas Instruments Trust, such consolidation, merger, conveyance,
transfer or lease is permitted under the Trust Agreement and Texas
Instruments Guarantee and does not give rise to any breach of
violation of the Trust Agreement or Texas Instruments Guarantee; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture complies with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with; and the Trustee, subject to Section 6.01, may
rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this Section
8.01.
SECTION 8.02. Successor Corporation Substituted. Upon any
consolidation or merger by the Company with or into any other corporation, or
any conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with Section 8.01, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had
been named as the Company herein; and in the event of any such conveyance,
transfer or lease the Company shall be discharged from all obligations and
covenants under the Indenture and the Debentures and may be dissolved and
liquidated.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Debentures issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debentures which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Debentures which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Debentures so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Debentures theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Debentures had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Debentures thereafter
to be issued as may be appropriate.
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ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of or notice to any Holder, the Company, when authorized by
the Establishing Documents, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Debentures contained; or
(b) to convey, transfer, assign, mortgage or pledge any
property to or with the trustee or to surrender any right or power
herein conferred upon the Company; or
(c) to establish the form or terms of Debentures of any
series as permitted by Sections 2.01 or 3.01; or
(d) to add to covenants of the Company for the benefit of
the Holders of all or any series of Debentures (and if such covenants
are to be for the benefit of less than all series of Debentures,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(e) to add any additional Events of Default; or
(f) to add, change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination shall
become effective only when there is no Debenture Outstanding of any
series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or
(g) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (g) shall not materially adversely affect the
interest of the Holders of Debentures of any series or, in the case of
the Debentures of a series issued to the Texas Instruments Trust and
for so long as any of the corresponding series of Preferred Securities
shall remain outstanding, the holders of such Preferred Securities; or
(h) to evidence and provide for the acceptance of
appointment hereunder by successor Trustee with respect to the
Debentures of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
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facilitate the administration of the Trust hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b);
(i) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the Trust Indenture Act; or
(j) to make provision with respect to the conversion or
exchange rights of the Holders of any series of Debentures pursuant to
the requirements of the Establishing Documents.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Debentures of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Debentures of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debenture affected thereby,
(a) except to the extent permitted by Section 3.11 or as
otherwise specified as contemplated by Section 3.01 with respect to
the extension of the interest payment period of the Debentures of any
series, change the Stated Majority of the principal of, or any
installment of interest (including any Additional Interest) on, any
Debenture, or reduce the principal amount thereof or the rate of
interest thereon or reduce any premium payable upon the redemption
thereof, or reduce the amount of principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02, or
change the place of payment where, or the coin or currency in which,
any Debenture or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after
the date fixed for redemption thereof); or
(b) adversely affect any right to convert or exchange any
Debenture or modify the provisions of this Indenture with respect to
the subordination of the Debentures in a manner adverse to such
Holder; or
(c) reduce the percentage in principal amount of the
Outstanding Debentures 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
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provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(d) modify any of the provisions of this Section, Section
5.13 or Section 10.06, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Debenture
affected thereby; or
(e) modify the provisions in Article Thirteen of this
Indenture with respect to the subordination of Outstanding Debentures
of any series in a manner adverse to the Holders thereof;
provided that, in the case of the Debentures of a series issued to the Texas
Instruments Trust, so long as any of the corresponding series of Preferred
Securities remains outstanding, no such amendment shall be made that adversely
affects the holders of such Preferred Securities, and no termination of this
Indenture shall occur, and no waiver of any Event of Default or compliance with
any covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate liquidation preference
of such Preferred Securities then outstanding unless and until the principal
(and premium, if any) of the Debentures of such series and all accrued and
unpaid interest (including any Additional Interest) thereon have been paid in
full.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Debentures, or which modifies
the rights of the Holders of Debentures of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Debentures of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing or
accepting the additional trusts created by any supplemental indenture permitted
by this Article or the modifications thereby of the trust created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture, and that all conditions precedent
have been complied with. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
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SECTION 9.04. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Debentures
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Debentures to Supplemental Indentures.
Debentures authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new
Debentures of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Debentures of such series.
ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of each series of Debentures that
it will duly and punctually pay the principal of (and premium, if any) and
interest on the Debentures of that series in accordance with the terms of such
Debentures and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company will
maintain in each Place of Payment for any series, an office or agency where
Debentures of that series may be presented or surrendered for payment and an
office or agency where Debentures may be surrendered for transfer or exchange
and where notices and demands to or upon the Company in respect of the
Debentures and this Indenture may be served. The Company initially appoints
the Trustee, acting through its Corporate Trust Office, as its agent for said
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the
Company shall fail to maintain such office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent 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 Debentures may be presented or surrendered for
any or all of such purposes, and may
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from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Debentures of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such office or agency.
SECTION 10.03. Money for Debenture Payments to Be Held in Trust. If
the Company shall at any time act as its own Paying Agent with respect to any
series of Debentures, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Debentures of such series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on
or before each due date of the principal of or interest on any Debentures,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal and premium (if any) or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Debentures in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company
(or any other obligor upon the Debentures) in the making of any
payment of principal (and premium, if any) or interest;
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent; and
(d) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any
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Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by the Company or any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Debenture and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall (unless otherwise required by mandatory provision of applicable escheat
or abandoned or unclaimed property law) be paid on Company Request to the
Company, or (if then held by the Company) shall (unless otherwise required by
mandatory provision of applicable escheat or abandoned or unclaimed property
law) be discharged from such trust; and the Holder of such Debenture shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid the Company.
SECTION 10.04. Payment of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all taxes, assessments and governmental charges levied
or imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity
is being contested in good faith by appropriate proceedings.
SECTION 10.05. Statement as to Compliance. The Company shall deliver
to the Trustee, within120 days after the end of each calendar year of the
Company ending after the date hereof, an Officers' Certificate (signed by at
least one of the officers referred to in Section 314(a)(4) of the Trust
Indenture Act) covering the preceding calendar year, stating whether or not to
the best knowledge of the signers thereof the Company is in default in the
performance, observance or fulfillment of or compliance with any of the terms,
provisions, covenants and conditions of this Indenture, and if the Company
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge. For the purpose of this Section
10.05,
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compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
SECTION 10.06. Waiver of Certain Covenants. The Company may omit in
any particular instance to comply with any covenant or condition set forth in
Section 10.04 or as specified as contemplated by Section 3.01 with respect to
the Debentures of any series, if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Debentures of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 10.07. Additional Sums. In the case of the Debentures of a
series issued to the Texas Instruments Trust, except as otherwise specified as
contemplated by Section 3.01, in the event that (a) the Property Trustee is the
Holder of all of the Outstanding Debentures of such series, (b) a Tax Event in
respect of the Texas Instruments Trust shall have occurred and be continuing and
(c) the Company shall not have (i) redeemed the Debentures of such series
pursuant to Section 11.07(b) or (ii) terminated the Texas Instruments Trust
pursuant to Section 9.02(b) of the Trust Agreement, the Company shall pay to the
Texas Instruments Trust (and its permitted successors or assigns under the Trust
Agreement) for so long as the Property Trustee (or its permitted successor or
assignee) is the registered Holder of any Debentures of such series, such
additional amounts as may be necessary in order that the amount of distributions
(including any Additional Amounts (as defined in the Trust Agreement)) then due
and payable by the Texas Instruments Trust on the related Preferred Securities
and Common Securities that at any time remain outstanding in accord with the
terms thereof shall not be reduced as a result of any Additional Taxes (the
"Additional Sums"); provided that, if this Indenture has not been qualified
under the Trust Indenture Act, the Company shall not be required to pay such
Additional Sums until this Indenture is so qualified. Whenever in this
Indenture or the Debentures there is a reference in any context to the payment
of principal of or interest on the Debentures, such mention shall be deemed to
include mention of the payments of the Additional Sums provided for in this
paragraph to the extent that, in such context, Additional Sums are, were or
would be payable in respect thereof pursuant to the provisions of this paragraph
and express mention of the payment of Additional Sums (if applicable) in any
provisions hereof shall not be construed as excluding Additional Sums in those
provisions hereof where such express mention is not made, provided, however,
that the extension of an interest payment period pursuant to Section 3.11 or the
Debentures shall not extend the payment of any Additional Sums that may be due
and payable during such interest payment period.
SECTION 10.08. Additional Covenants. The Company covenants and
agrees with each Holder of Debentures of a series issued to the Texas
Instruments Trust that it will not, and it will not permit any Subsidiary to,
(a) declare or pay any dividends or distributions on, or redeem,
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purchase, acquire or make a liquidation payment with respect to, any of the
Company's outstanding capital stock, (b) make any payment of principal, interest
or premium, if any, on or repay, repurchase or redeem any debt securities that
rank pari passu with or junior in interest to the Debentures of such series or
make any guarantee payments with respect to any guarantee by the Company of the
debt securities of any Subsidiary if such guarantee ranks pari passu or junior
in interest to the Debentures or (c) cause the conversion rights, if any, of the
Holders of the Debentures to expire (other than (i) dividends or distributions
in common stock of the Company, (ii) redemptions or purchases of any rights
pursuant to the Company's Shareholders Rights Plan, or any successor to such
Shareholders Rights Plan, and the declaration of a dividend of such rights in
the future, (iii) payments under the Texas Instruments Guarantee, (iv) purchases
of Texas Instruments Common Stock related to the issuance of Texas Instruments
Common Stock under any of the Company's benefit plans for its directors,
officers or employees and (v) purchases of Texas Instruments Common Stock
required to prevent loss or secure the renewal or reinstaement of any government
license or franchise held by the Company or the Subsidiaries) if at such time
(A) there shall have occurred any event of which the Company has actual
knowledge that (1) with the giving of notice or the lapse of time or both, would
constitute an Event of Default hereunder and (2) in respect of which the Company
shall not have taken reasonable steps to cure, (B) the Company shall be in
default with respect to its payment of any obligations under the Texas
Instruments Guarantee or (C) the Company shall have given notice of its
selection of an Extension Period as provided herein and shall not have rescinded
such notice, or such period, or any extension thereof, shall be continuing.
The Company also covenants with each Holder of Debentures of a series
issued to the Texas Instruments Trust (i) to maintain directly or indirectly
100% ownership of the Common Securities of the Texas Instruments Trust;
provided, however, that any permitted successor of the Company hereunder may
succeed to the Company's ownership of such Common Securities, (ii) not to
voluntarily terminate, wind-up or liquidate the Texas Instruments Trust, except
(a) in connection with a distribution of the Debentures of such series to the
holders of Preferred Securities in liquidation of the Texas Instruments Trust
or (b) in connection with certain mergers, consolidations or amalgamations
permitted by the Trust Agreement and (iii) to use its reasonable efforts,
consistent with the terms and provisions of the Trust Agreement, to cause the
Texas Instruments Trust to remain a business trust and not to be classified as
an association taxable as a corporation for United States Federal income tax
purposes.
ARTICLE 11
REDEMPTION OF DEBENTURES
SECTION 11.01. Applicability of this Article. Redemption of
Debentures (whether by operation of a sinking fund or otherwise) as permitted
or required by any form of Debenture issued pursuant to this Indenture shall be
made in accordance with such form of Debenture and this Article; provided,
however, that if any provision of any such form of Debenture shall conflict
with any provision of this Article, the provision of such form of Debenture
shall govern. Except
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as otherwise set forth in the form of Debenture for such series, each Debenture
shall be subject to partial redemption only in the amount of $50 or, in the
case of the Debentures of a series issued to the Texas Instruments Trust, $50,
or integral multiples thereof.
SECTION 11.02. Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Debentures shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of
less than all of the Debentures of any particular series and having the same
terms, the Company shall, not less than 45 days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such date and of the principal amount of Debentures of
that series to be redeemed. In the case of any redemption of Debentures prior
to the expiration of any restriction on such redemption provided in the terms
of such Debentures, the Company shall furnish the Trustee with an Officers'
Certificate and an Opinion of Counsel evidencing compliance with such
restriction.
SECTION 11.03. Selection of Debentures to Be Redeemed. If less than
all the Debentures of any series are to be redeemed (unless all the Debentures
of a specified tenor of such series are to be redeemed or unless such
redemption affects only a single Debenture), the particular Debentures to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee from the Outstanding Debentures of such series; not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a portion
of the principal amount of any Debenture of such series; provided that the
unredeemed portion of the principal amount of any Debenture shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Debenture. If less than all the Debentures of a
specified tenor of such series are to be redeemed (unless such redemption
affects only a single Debenture), the particular Debentures to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Debentures of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for partial redemption and the principal amount thereof to
be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debentures shall relate,
in the case of any Debenture redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debenture which has been or is to be
redeemed. If the Company shall so direct, Debentures registered in the name of
the Company, any Affiliate or any Subsidiary thereof shall not be included in
the Debentures selected for redemption.
SECTION 11.04. Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not later than the thirtieth
day, and not earlier than the sixtieth day, prior to the date fixed for
redemption, to each Holder of Debentures to be redeemed, at the address of such
Holder as it appears in the Securities Register.
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With respect to Debentures of each series to be redeemed, each notice
of redemption shall state:
(a) the date fixed for redemption for Debentures of such series;
(b) the redemption price at which Debentures of such series are to
be redeemed;
(c) if less than all Outstanding Debentures of such particular
series and having the same terms are to be redeemed, the identification (and,
in the case of partial redemption, the respective principal amounts) of the
particular Debentures to be redeemed;
(d) that on the date fixed for redemption, the redemption price at
which such Debentures are to be redeemed will become due and payable upon each
such Debenture or portion thereof, and that interest thereon, if any, shall
cease to accrue on and after said date;
(e) the place or places where such Debentures are to be
surrendered for payment of the redemption price at which such Debentures are to
be redeemed;
(f) that the redemption is for a sinking fund, if such is the
case; and
(g) if the Debentures are convertible, that a Holder of Debentures
who desires to convert Debentures called for redemption must satisfy the
requirements for conversion contained in such Debentures, the then existing
conversion price or rate, and the date and time when the option to convert
shall expire.
Notice of redemption of Debentures to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, a failure to give such notice by mail or any defect in
the notice to the Holder of any Debenture designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Debenture.
SECTION 11.05. Deposit of Redemption Price. Prior to the Redemption
Date specified in the notice of redemption given as provided in Section 11.04,
the Company will deposit with the Trustee or with one or more Paying Agents an
amount of money sufficient to redeem on the Redemption Date all the Debentures
so called for redemption at the applicable Redemption Price.
SECTION 11.06. Debentures Payable on Redemption Date. If notice of
redemption has been given as provided in Section 11.04, the Debentures so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, together with any accrued interest
(including any Additional Interest) thereon, and from and after such
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date (unless the Company shall default in the payment of the Redemption Price
or any accrued interest (including any Additional Interest)) such Debentures
shall cease to bear interest. Upon surrender of any such Debenture for
redemption in accordance with said notice, such Debenture shall be paid by the
Company at the Redemption Price, together with any accrued interest (and any
Additional Interest) to the Redemption Date; provided, however, that, except as
may be otherwise provided with respect to Debentures convertible into another
security in a supplemental indenture, Board Resolution or other instrument
authorizing such Debentures, installments of interest on Debentures whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Debentures, or one of more Predecessor Debentures, registered
as such at the close of business on the relevant Regular Record Dates or
Special Record Dates, as the case may be, according to their terms and the
provisions of Section 3.07.
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Debenture.
SECTION 11.07. Company's Right of Redemption. (a) Unless otherwise
specified as contemplated by Section 3.01 with respect to the Debentures of a
particular series and notwithstanding any additional redemption rights that may
be so specified, the Company may, at its option, redeem the Debentures of any
series after their date of issuance in whole at any time or in part from time
to time, subject to the provisions of this clause (a) and the other provisions
of this Article Eleventh. Unless otherwise specified as contemplated by
Section 3.01 with respect to the Debentures of a particular series, the
redemption price for any Debenture so redeemed pursuant to this clause (a)
shall be equal to 100% of the principal amount of such Debentures plus any
accrued and unpaid interest, including any Additional Interest, to the date
fixed for redemption. The Company shall not redeem the Debentures in part
unless all accrued and unpaid interest (including any Additional Interest) has
been paid in full on all Debentures Outstanding.
(b) In the case of the Debentures of a series issued to the Texas
Instruments Trust, except as otherwise specified as contemplated by Section
3.01, if a Special Event in respect of the Texas Instruments Trust shall occur
and be continuing, the Company may, at its option, redeem the Debentures of
such series at any time within 90 days of the occurrence of such Special Event,
in whole but not in part, subject to the provisions of this clause (b) and the
other provisions of this Article Eleven. The redemption price for any
Debenture so redeemed pursuant to this clause (b) shall be equal to 100% of the
principal amount of such Debentures then Outstanding plus accrued and unpaid
interest, including any Additional Interest, to the date fixed for redemption.
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ARTICLE 12
SINKING FUNDS
SECTION 12.01. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Debentures of any series except as otherwise specified as contemplated by
Section 3.01 of such Debentures.
The minimum amount of any sinking fund payment provided for by the
terms of any Debentures of any series is herein referred to as a "mandatory
sinking fund payment," and any sinking fund payment in excess of such minimum
amount which is permitted to be made by the terms of such Debentures of any
series is herein referred to as an "optional sinking fund payment." If
provided for by the terms of any Debentures of any series, the cash amount of
any sinking fund payment may be subject to reduction as provided in Section
12.02. Each sinking fund payment shall be applied to the redemption of
Debentures of any series as provided for by the terms of such Debentures.
SECTION 12.02. Satisfaction of Sinking Fund Payments With Debentures
.. In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Debentures of a series in cash, the Company may at its option,
at any time no more than 16 months and no less than 30 days prior to the date
on which such sinking fund payment is due, deliver to the Trustee Debentures of
such series (together with the unmatured coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Debentures
of such series that have been redeemed through the application of mandatory or
optional sinking fund payments pursuant to the terms of the Debentures of such
series, accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Debentures of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
provided that the Debentures to be so credited have not been previously so
credited. The Debentures to be so credited shall be received and credited for
such purpose by the Trustee at the redemption price for such Debentures, as
specified in the Debentures so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly.
SECTION 12.03. Redemption of Debentures for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for any series of
Debentures, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Debentures pursuant to the terms of such Debentures, the portion thereof, if
any, which is to be satisfied by payment of cash in the currency in which the
Debentures of such series are payable (except as provided pursuant to Section
3.01) and the portion thereof, if any, which is to be satisfied by delivering
and crediting Debentures pursuant to Section 12.02 and will also deliver to the
Trustee any Debentures to be so delivered. Such Certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the
succeeding sinking fund payment date. In the case of
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the failure of the Company to deliver such Certificate (or, as required by this
Indenture, the Debentures and coupons, if any, specified in such Certificate),
the sinking fund payment due on the succeeding sinking fund payment date or
such series shall be paid entirely in cash and shall be sufficient to redeem
the principal amount of the Debentures of such series subject to a mandatory
sinking fund payment without the right to deliver or credit Debentures as
provided in Section 12.02 and without the right to make the optional sinking
fund payment with respect to such series at such time.
Any sinking fund payment (mandatory or optional) made in cash plus any
unused balance of any preceding sinking fund payments made with respect to the
Debentures 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 immediately
following the date of such payment) to the redemption of Debentures of such
series at the redemption price specified in such Debentures with respect to the
sinking fund. Any sinking fund moneys not so applied or allocated by the
Trustee (or segregated and held in trust as provided in Section 10.03 by the
Company if the Company is acting as its own Paying Agent) for such series,
together with such payment (or such amount so segregated) shall be applied in
accordance with the provisions of this Section 12.03. Any and all sinking
fund moneys with respect to the Debentures 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 10.03) on the last sinking fund payment
date with respect to Debentures of such series and not held for the payment or
redemption of particular Debentures 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 Debentures
of such series at Maturity. The Trustee shall select the Debentures to be
redeemed upon such sinking fund payment date in the manner specified in Section
11.03 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 11.04. Such
notice having been duly given, the redemption of such Debentures shall be made
upon the terms and in the manner stated in Section 11.06. On or before each
sinking fund payment date, the Company shall pay to the Trustee (or, if the
Company is acting as its own Paying Agent, the Company shall segregate and hold
in trust as provided in Section 10.03) in cash a sum in the currency in which
Debentures of such series are payable (except as provided pursuant to Section
3.01) equal to the principal and any interest accrued to the redemption date
for Debentures or portions thereof to be redeemed on such sinking fund payment
date pursuant to this Section 12.03.
Neither the Trustee nor the Company shall redeem any Debentures of a
series with sinking fund moneys or mail any notice of redemption of Debentures
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 Debentures 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 Debentures of
such series,
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except that if the notice of redemption shall have been provided in accordance
with the provisions hereof, the Trustee (or the Company if the Company is then
acting as its own Paying Agent) shall redeem such Debentures if cash 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 Twelve.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the continuance of such default or
Event of Default, be held as security for the payment of the Debentures and
coupons, if any, of such series; provided, however, that in case such default
or Event of Default shall have been cured or waived herein, such moneys shall
thereafter be applied on the next sinking fund payment date for the Debentures
of such series on which such moneys may be applied pursuant to the provisions
of this Section 12.03.
ARTICLE 13
SUBORDINATION OF DEBENTURES
SECTION 13.01. Debentures Subordinate to Senior Debt. The Company
covenants and agrees, and each Holder of a Debenture, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the payment of the principal of (and
premium, if any) and interest (including any Additional Interest) on each and
all of the Debentures are hereby expressly made subordinate and subject in
right of payment to the prior payment in full of all amounts then due and
payable in respect of all Senior Debt.
SECTION 13.02. Payment Over of Proceeds upon Dissolution, Etc. In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company (each such event, if any, herein sometimes
referred to as a "Proceeding"), then the holders of Senior Debt shall be
entitled to receive payment in full of principal of (and premium, if any) and
interest, if any, on such Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt, before the Holders of the Debentures are entitled
to receive or retain any payment or distribution of any kind or character,
whether in cash, property or Debentures (including any payment or distribution
which may be payable or deliverable by reason of the payment of any other Debt
of the Company (including any series of the Debentures) subordinated to the
payment of the Debentures, such payment or distribution being hereinafter
referred to as a "Junior Subordinated Payment"), on account of principal of (or
premium, if any) or interest (including any Additional Interest) on the
Debentures or on account of the purchase or other acquisition of Debentures by
the Company or any Subsidiary and to that end the holders of Senior Debt shall
be entitled to receive, for application to the payment thereof, any payment or
distribution of any kind of character, whether in cash, property or Debentures,
including any Junior Subordinated Payment, which may be payable or deliverable
in respect of the Debentures in any such Proceeding.
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In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Debenture shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or Debentures, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment or distribution shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
For the purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or Debentures"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or Debentures of the Company or any other corporation provided for
by a plan of reorganization or readjustment which Debentures are subordinated
in right of payment to all then outstanding Senior Debt to substantially the
same extent as the Debentures are so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
sale of all or substantially all of its properties and assets as an entirety to
another Person or the liquidation or dissolution of the Company following the
sale of all or substantially all of its properties and assets as an entirety to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a Proceeding for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by sale such properties and assets as an entirety, as the case
may be, shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article Eight.
SECTION 13.03. Prior Payment to Senior Debt upon Acceleration of
Debentures. In the event that any Debentures are declared due and payable
before their Maturity, then and in such event the holders of the Senior Debt
outstanding at the time such Debentures so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall
be made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the
Debentures are entitled to receive any payment or distribution of any kind or
character, whether in cash, properties or Debentures (including any Junior
Subordinated Payment) by the Company on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on the
Debentures or on account of the purchase or other acquisition of Debentures by
the Company or any Subsidiary; provided, however, that nothing in this Section
shall prevent the satisfaction of any sinking fund payment in accordance with
this Indenture or as otherwise specified as contemplated by Section 3.01 for
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the Debentures of any series by delivering and crediting pursuant to Section
12.02 or as otherwise specified as contemplated by Section 3.01 for the
Debentures of any series, Debentures which have been acquired (upon redemption
or otherwise) prior to such declaration of acceleration.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Debenture prohibited by
the foregoing provisions of this Section, and if such fact shall, at or prior
to the time of such payment, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event such payment shall be paid
over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 13.02 would be applicable.
SECTION 13.04. No Payment When Senior Debt in Default. (a) In the
event and during the continuation of any default in the payment of principal of
(or premium, if any) or interest on any Senior Debt, or in the event that any
event of default with respect to any Senior Debt shall have occurred and be
continuing and shall have resulted in such Senior Debt becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, unless and until such event of default shall have been
cured or waived or shall have ceased to exist and such acceleration shall have
been rescinded or annulled, or (b) in the event any judicial proceeding shall
be pending with respect to any such default in payment or such event or
default, then no payment or distribution of any kind or character, whether in
cash, properties or Debentures (including any Junior Subordinated Payment)
shall be made by the Company on account of principal of (or premiums, if any)
or interest (including any Additional Interest), if any, on the Debentures or
on account of the purchase or other acquisition of Debentures by the Company or
any Subsidiary; provided, however, that nothing in this Section shall prevent
the satisfaction of any sinking fund payment in accordance with this Indenture
or as otherwise specified as contemplated by Section 3.01 for the Debentures of
any series by delivering and crediting pursuant to Section 12.02 or as
otherwise specified as contemplated by Section 3.01 for the Debentures of any
series Debentures which have been acquired (upon redemption or otherwise) prior
to such default in payment or event of default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Debenture prohibited by
the foregoing provisions of this Section, and if such fact shall, at or prior
to the time of such payment, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event such payment shall be paid
over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 13.02 would be applicable.
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SECTION 13.05. Payment Permitted If No Default. Nothing contained in
this Article or elsewhere in this Indenture or in any of the Debentures shall
prevent (a) the Company, at any time except during the pendency of any
Proceeding referred to in Section 13.02 or under the conditions described in
Sections 13.03 and 13.04, from making payments at any time of principal of (and
premium, if any) or interest on the Debentures, or (b) the application by the
Trustee of any money or Government Obligations deposited with it hereunder to
the payment of or on account of the principal of (and premium, if any) or
interest (including any Additional Interest) on the Debentures or the retention
of such payment by the Holders, if, at the time of such application by the
Trustee, it did not have knowledge that such payment would have been prohibited
by the provisions of this Article.
SECTION 13.06. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, or the provision for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt, the Holders of the Debentures shall be subrogated
to the extent of the payments or distributions made to the holders of such
Senior Debt pursuant to the provisions of this Article (equally and ratably
with the holders of all indebtedness of the Company which by its express terms
is subordinated to Senior Debt of the Company to substantially the same extent
as the Debentures are subordinated to the Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to
holders of such Senior Debt) to the rights of the holders of such Senior Debt
to receive payments and distributions of cash, property and Debentures
applicable to the Senior Debt until the principal of (and premium, if any) and
interest on the Debentures shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or Debentures to which the Holders of the Debentures or the
Trustee would be entitled except for the provisions of this Article, and no
payments pursuant to the provisions of this Article to the holders of Senior
Debt by Holders of the Debentures or the Trustee, shall, as among the Company,
its creditors other than holders of Senior Debt, and the Holders of the
Debentures, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
SECTION 13.07. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Debentures on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Debentures is intended to or
shall (a) impair, as between the Company and the Holders of the Debentures, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Debentures the principal of (and premium, if any) and interest
(including any Additional Interest) on the Debentures as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Debentures and
creditors of the Company other than their rights in relation to the holders of
Senior Debt; or (c) prevent the Trustee or the Holder of any Debenture from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture including, without limitation,
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filing and voting claims in any Proceeding, subject to the rights, if any,
under this Article of the holders of Senior Debt to receive cash, property and
Debentures otherwise payable or deliverable to the Trustee or such Holder.
SECTION 13.08. Trustee to Effectuate Subordination. Each Holder of a
Debenture by his or her acceptance thereof authorizes and directs the Trustee
on his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee his or her attorney-in- fact for any and all such
purposes.
SECTION 13.09. No Waiver of Subordination Provisions. No right of
any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or be otherwise charged with.
SECTION 13.10. Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Debentures. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Debentures, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Debt or from any trustee, agent or representative therefor (whether or not the
facts contained in such notice are true); provided, however, that if the
Trustee shall not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the terms hereof any
monies may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any) or interest (including any
Additional Interest) on any Debenture), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies 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 within two Business Days prior to such date.
SECTION 13.11. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Article
Six, and the Holders of the Debentures shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which a Proceeding
is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders of Debentures, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
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Senior Debt 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.
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be
liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Debentures or to the Company or to any other Person
cash, property or Debentures to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise.
SECTION 13.13. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any
other holder of Senior Debt, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
SECTION 13.14. Article Applicable to Paying Agents. In case at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intent and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
SECTION 13.15. Certain Conversions or Exchanges Deemed Payment. For
the purpose of this Article only, (a) the issuance and delivery of junior
securities upon conversion or exchange of Debentures shall not be deemed to
constitute a payment or distribution on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on Debentures
or on account of the purchase or other acquisition of Debentures, and (b) the
payment, issuance or delivery of cash, property or securities (other than
junior securities) upon conversion or exchange of a Debenture shall be deemed
to constitute payment on account of the principal of such security. For the
purpose of this Section, the term "junior securities" means (i) shares of any
stock of any class of the Company and (ii) securities of the Company which are
subordinated in right of payment to all Senior Debt which may be outstanding at
the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Debentures are so subordinated as
provided in this Article.
* * * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
TEXAS INSTRUMENTS INCORPORATED
By:
-----------------------------------
Attest:
(-----------------------------------)
as Trustee
By:
-----------------------------------
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State of :
: SS.
County of :
On the __ day of ______________, _____ before me personally came
_____________________, to me known, who being duly sworn, did depose and say
that he/she is _______________________ of Texas Instruments Incorporated, one
of the corporations described in and which executed the foregoing instrument;
that he/she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he/she signed his/her name
thereto by like authority.
-----------------------------------
Notary Public
My Commission Expires:
State of :
: SS.
County of :
On the __ day of ______________, _____ before me personally came
_____________________, to me known, who being duly sworn, did depose and say
that he/she is _______________________ of The
(_______________________________), a [Delaware] banking corporation, described
in and which executed the foregoing instrument; that he/she knows the seal of
said association; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
association, and that he/she signed his/her name thereto by like authority.
-----------------------------------
Notary Public
My Commission Expires:
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