<PAGE> 1
As filed with the Securities and Exchange Commission on October 20, 1994
Registration No. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------
<TABLE>
<S> <C>
INTEL CORPORATION INTEL OVERSEAS CORPORATION
(Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter)
Delaware California
(State of Incorporation) (State of Incorporation)
94-1672743 77-00533722
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
</TABLE>
2200 Mission College Boulevard
Santa Clara, California 95052-8119, (408) 765-8080
(Address, including zip code, and telephone number, including area code, of
registrants' principal executive offices)
F. Thomas Dunlap, Jr.
Intel Corporation
Intel Overseas Corporation
2200 Mission College Boulevard
Santa Clara, California 95052-8119, (408) 765-8080
(Name, address, including zip code, and telephone number, including area code,
of registrants' agent for service)
Copies to:
Scott T. Smith
Katharine A. Martin
Pillsbury Madison & Sutro
2700 Sand Hill Road, Menlo Park, California 94025-7111
------------------
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: /X/
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
combined prospectus contained herein also relates to Registration Statements on
Form S-3 Nos. 33-58964, 33-20117 and 33-54220.
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Proposed
Proposed maximum
Title of each class Amount maximum aggregate Amount of
of securities to be offering offering registration
to be registered registered price per share price(1) fee(1)
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C> <C> <C>
Common Stock, $.001 par value of Intel Corporation
Preferred Stock, $.001 par value of Intel Corporation
Depositary Shares of Intel Corporation
Debt Securities of Intel Corporation
Warrants to Purchase Common Stock of Intel Corporation
Warrants to Purchase Preferred Stock of Intel Corporation (2) (2) $1,000,000 $345
Third Party Warrants
Warrants to Purchase Debt Securities of Intel Corporation
Foreign Currency Exchange Warrants
Stock Index Warrants
Other Warrants
Debt Securities of Intel Overseas Corporation
Guarantees of Intel Corporation(3)
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(2) Not applicable pursuant to Form S-3 General Instruction II(D) under the
Securities Act of 1933.
(3) To be issued in connection with Debt Securities of Intel Overseas
Corporation.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment that states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the Registration Statement shall become effective on such
date as the Commission, acting pursuant to Section 8(a), may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PROSPECTUS
- -----------------
INTEL CORPORATION
Common Stock, Preferred Stock, Depositary Shares, Debt Securities, Warrants to
Purchase Common Stock, Warrants to Purchase Preferred Stock, Third Party
Warrants, Warrants to Purchase Debt Securities, Foreign Currency Exchange
Warrants, Stock Index Warrants, Other Warrants and Guarantees of Debt Securities
of Intel Overseas Corporation
INTEL OVERSEAS CORPORATION
Debt Securities
Intel Corporation, a Delaware corporation ("Intel"), or Intel Overseas
Corporation, a California corporation ("Intel Overseas"), as the case may be,
directly or through agents, dealers or underwriters designated from time to
time, may issue and sell from time to time up to $1,361,000,000 in the
aggregate, subject to the limitations set forth below, of (a) shares of common
stock, $0.001 par value per share of Intel ("Common Stock"), (b) shares of
preferred stock, $0.001 par value per share of Intel ("Preferred Stock"), in one
or more series, (c) depositary shares of Intel ("Depositary Shares"), (d) debt
securities of Intel ("Intel Debt Securities"), (e) options, warrants and other
rights to purchase shares of Common Stock ("Common Stock Warrants") or shares of
Preferred Stock ("Preferred Stock Warrants"), (f) options, warrants and other
rights to purchase shares of capital stock or debt of another corporation or
other entity ("Third Party Warrants"), (g) options, warrants and other rights to
purchase Intel Debt Securities ("Debt Warrants"), (h) options, warrants and
other rights issued by Intel entitling the holders thereof to receive, upon
exercise, the cash value in U.S. dollars of the right to purchase or sell an
amount of non-U.S. currency or currencies for a specified amount of U.S.
dollars, such value to be based on the exchange rate prevailing at the time of
payment of the U.S. dollar either as compared to a specified non-U.S. currency
or currency unit or as determined by reference to an index of specified
currencies or currency units ("Currency Warrants"), (i) options, warrants and
other rights issued by Intel entitling the holders thereof to receive, upon
exercise, an amount in cash determined by reference to decreases, increases or
other measurements in the level of a specified stock index which may be based on
U.S. or foreign stocks or a combination thereof ("Stock Index Warrants") (j)
options, warrants or other rights relating to other items or indices ("Other
Warrants") and (k) debt securities of Intel Overseas, which will be fully and
unconditionally guaranteed (the "Guarantee") by Intel ("Intel Overseas Debt
Securities," and together with the Intel Debt Securities, "Debt Securities"), or
any combination of the foregoing, either individually or as units consisting of
one or more of the foregoing, each on terms to be determined at the time of
sale. The Common Stock, Preferred Stock, Depositary Shares, Debt Securities,
Common Stock Warrants, Preferred Stock Warrants, Third Party Warrants, Debt
Warrants, Currency Warrants, Stock Index Warrants, Other Warrants and Guarantees
are collectively referred to herein as the "Securities." The aggregate dollar
amount available hereunder is covered by four registration statements filed with
the Securities and Exchange Commission, each of which relates to one or more of
the types of Securities offered hereby; most of the types of Securities are
covered by more than one of the registration statements. See "Available
Information." Of the $1,361,000,000 of Securities remaining available,
$150,000,000 can only be designated as Stock Index Warrants and only
$1,031,000,000 is available as Intel Overseas Debt Securities and $1,211,000,000
is generally available.
------------------------
Additional information regarding the Securities is set forth on the inside
front cover.
------------------------
Certain of the Securities to be offered hereby involve a high degree of
risk. The risks associated with a Security will be set forth in the Prospectus
Supplement relating to such Security.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
Intel and Intel Overseas may sell the Securities to or through
underwriters, dealers or agents or directly to purchasers. See "Plan of
Distribution." Intel and Intel Overseas reserve the sole right to accept and,
together with their respective agents from time to time, to reject in whole or
in part any proposed purchase of Securities to be made directly or through
agents. The accompanying Prospectus Supplement sets forth the names of any
underwriters, dealers or agents involved in the sale of the Securities in
respect of which this Prospectus is being delivered, and any applicable fee,
commission or discount arrangements with them.
The date of this Prospectus is October , 1994
<PAGE> 3
All specific terms of the offering and sale of Securities, including the
initial public offering price, aggregate amount, listing on any securities
exchange or quotation system, risk factors and the agents, dealers or
underwriters, if any, to be utilized in connection with the sale of the
Securities, will be set forth in an accompanying Prospectus Supplement
("Prospectus Supplement").
With respect to the Preferred Stock, the related Prospectus Supplement will
set forth the specific designation, rights, preferences, privileges and
restrictions thereof, including dividend rate or rates (or method of
ascertaining the same), dividend payment dates, voting rights, liquidation
preference, and any conversion, exchange, redemption or sinking fund provisions.
With respect to the Debt Securities, the related Prospectus Supplement will
set forth the specific designation, rights and restrictions, including the
issuer of the Debt Securities, whether they are senior or subordinated, the
currencies or currency units in which they are denominated, the aggregate
principal amount, the maturity, rate and time of payment of interest, the terms
of the Guarantee, if any, and any conversion, exchange, redemption or sinking
fund provisions.
With respect to the Preferred Stock Warrants, Third Party Warrants and Debt
Warrants the related Prospectus Supplement will contain a description of the
Preferred Stock, capital stock or debt of such third party and Debt Securities,
respectively, for which each warrant will be exercisable and the exercise price,
duration, detachability, call provisions and other principal terms of such
Warrants.
With respect to the Currency Warrants, the related Prospectus Supplement
will set forth whether such Warrants represent the right to purchase ("Currency
Call Warrants") or to sell ("Currency Put Warrants") an amount of non-U.S.
currency or currencies; whether the cash value payable upon exercise ("Cash
Settlement Value") will be based on the exchange rate prevailing at the time of
payment of the U.S. dollar (i) as compared to a specified non-U.S. currency or
units of two or more specified non-U.S. currencies ("Reference Currency") or
(ii) as determined by reference to a Currency Index of two or more specified
non-U.S. currencies or currency units ("Currency Index"); the particular
Reference Currency or Currency Index (including each Index Currency included
therein), as applicable, to which the Cash Settlement Value of such Warrants is
related; the date on which the right to exercise such Warrants commences and the
expiration date of such Warrants; the manner in which such Warrants may be
exercised and any restrictions on, or other special provisions relating to, the
exercise of such Warrants; whether and under what circumstances such Warrants
may be canceled by Intel prior to their expiration date or the exercise or
valuation of, or payment for, such Warrants may be delayed or postponed; the
method of determining the amount payable in connection with the exercise or
cancellation of such Warrants, including, if the Warrants relate to a particular
Currency Index, the predetermined amount to which the level of the Currency
Index upon exercise of such Warrants is compared and the method of translating
movements in the Currency Index into a cash amount in U.S. dollars; the amount
payable on cancellation of such Warrants ("Cancellation Amount") or the amount
payable upon suspension of the exercise of, or postponement of valuation of or
payment for, such Warrants ("Alternative Settlement Amount"), in each case if
applicable, and the minimum expiration value, if any, payable in certain
circumstances upon expiration or exercise of such Warrants ("Minimum Expiration
Value"); certain U.S. federal income tax consequences relating to such Warrants;
and any other specific terms of, or information regarding, such Warrants.
With respect to the Stock Index Warrants, the related Prospectus Supplement
will set forth certain information regarding the stock index (which will be an
established, broadly-based index related to a major domestic or foreign equity
trading market unless otherwise specified) ("Stock Index") and the underlying
stocks ("Underlying Stocks"); whether payment on exercise of such Warrants will
be determined by reference to decreases ("Stock Index Put Warrants"), increases
("Stock Index Call Warrants") or other measurement in the level of the Stock
Index; the date on which the right to exercise such Warrants commences and the
expiration date of such Warrants; the manner in which such Warrants may be
exercised and any restrictions on, or other special provisions relating to, the
exercise of such Warrants; the currency, currency units or composite currency
("Currency") in which payments on the Warrants will be made (which will be U.S.
dollars unless otherwise specified); whether and under what circumstances such
Warrants may be canceled by Intel prior to their expiration date or the exercise
or valuation of, or payment for, such Warrants may be
2
<PAGE> 4
delayed or postponed; the method of determining the amount payable in connection
with the exercise or cancellation of such Warrants, including the predetermined
amount with respect to which movements in the level of the Stock Index are
determined upon exercise or cancellation of such Warrants; the method of
translating movements in the Stock Index into a cash amount in the Currency in
which such Warrants are payable, including, for Warrants relating to a foreign
Stock Index ("Foreign Stock Index"), the method of converting amounts in such
foreign currency into U.S. dollars (or such other Currency in which such
Warrants are payable); the Cancellation Amount or Alternative Settlement Amount,
in each case if applicable, and the Minimum Expiration Value, if any, payable in
certain circumstances upon expiration or exercise of such Warrants; certain U.S.
federal income tax consequences relating to such Warrants; and any other
specific terms of, or information regarding, such Warrants.
With respect to the Other Warrants, the related Prospectus Supplement will
set forth certain information regarding a commodity or other item (a
"Commodity") or a commodity index or other index (a "Commodity Index" and
collectively with "Commodity" an "Exercise Item"); whether payment on exercise
of such Warrants will be determined by reference to decreases ("Other Put
Warrants"), increases ("Other Call Warrants") or another measurement in the
value of the Commodity or the level of the Commodity Index; the date on which
the right to exercise such Warrants commences and the expiration date of such
Warrants; the manner in which such Warrants may be exercised and any
restrictions on, or other special provisions relating to, the exercise of such
Warrants; the Currency in which payments on the Warrants will be made (which
will be U.S. dollars unless otherwise specified); whether and under what
circumstances such Warrants may be canceled by Intel prior to their expiration
date or the exercise or valuation of, or payment for, such Warrants may be
delayed or postponed; the method of determining the amount payable in connection
with the exercise or cancellation of such Warrants, including the predetermined
amount with respect to which movements in the Commodity or Commodity Index are
determined upon exercise or cancellation of such Warrants; the method of
translating movements in the Commodity or Commodity Index into a cash amount in
the Currency in which such Warrants are payable; the Cancellation Amount or
Alternative Settlement Amount, in each case if applicable, and the Minimum
Expiration Value, if any, payable in certain circumstances upon expiration or
exercise of such Warrants; certain U.S. federal income tax consequences relating
to such Warrants; and any other specific terms of, or information regarding,
such Warrants.
3
<PAGE> 5
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OVERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON ANY EXCHANGE ON WHICH THE
SECURITIES ARE LISTED, IN THE OVER-THE-COUNTER MARKET, OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
------------------------
AVAILABLE INFORMATION
Intel is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
concerning Intel can be inspected and copied at the public reference facilities
maintained by the Commission at its offices at Judiciary Plaza, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, as well as the Regional Offices
of the Commission located at Seven World Trade Center, 13th Floor, New York, New
York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material can be obtained at prescribed rates from the Public
Reference Section of the Commission at its principal office at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549.
Intel Overseas is not subject to the informational requirements of the
Exchange Act.
Intel and Intel Overseas have filed with the Commission certain
registration statements on Form S-3 under the Securities Act of 1933, as amended
(the "Securities Act") as follows: a registration statement filed in February
1988 by Intel originally related to $150,000,000 of Debt Securities of Intel and
$30,000,000 of Currency Warrants and was amended in May 1993 to cover all
Securities, except Intel Overseas Debt Securities, and to aggregate the dollar
amount of the Securities registered (the "1988 Registration Statement"); a
registration statement filed in November 1992 by Intel relates to $150,000,000
of Stock Index Warrants (the "1992 Registration Statement"); a Registration
Statement filed in March 1993 by Intel and Intel Overseas relates to
$3,000,000,000 of Securities (of which $1,030,000,000 remains available) (the
"1993 Registration Statement"); and a Registration Statement filed in October
1994 by Intel and Intel Overseas relates to $1,000,000 of Securities (the "1994
Registration Statement," and together with the 1988 Registration Statement, the
1992 Registration Statement and the 1993 Registration Statement, collectively
the "Registration Statements"). This Prospectus does not contain all of the
information set forth in the Registration Statements, certain parts of which are
omitted in accordance with the rules and regulations of the Commissions. For
further information, reference is hereby made to the Registration Statements.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Intel's Annual Report on Form 10-K for the year ended December 25, 1993 and
Quarterly Reports on Form 10-Q for the quarters ended April 2, 1994 and July 2,
1994 are incorporated in this Prospectus by reference. All documents
subsequently filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act prior to the termination of this offering shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
Intel or Intel Overseas will provide without charge to each person to whom
a copy of the Prospectus has been delivered, and who makes a written or oral
request, a copy of any and all of the information that has been incorporated by
reference in the Registration Statements, excluding exhibits. Requests should be
directed to: F. Thomas Dunlap, Jr., Secretary, Intel Corporation, 2200 Mission
College Boulevard, Santa Clara, California 95052-8119 (telephone number: (408)
765-8080).
------------------------
References herein to "U.S. dollar," "dollar," "U.S.$" or "$" are to the
lawful currency of the United States of America.
------------------------
An index to defined terms used herein is located on the inside back cover
of this Prospectus.
4
<PAGE> 6
INTEL
Intel designs, develops, manufactures and markets advanced microcomputer
components and related products at various levels of integration. Intel's
strategy is to offer original equipment manufacturers (OEMs) a range of
solutions for their needs at component, board and system levels, and to offer
personal computer end users products that enhance their systems in the areas of
connectivity, performance and portability.
Intel's microcomputer components are integrated circuits consisting of
silicon-based semiconductors etched with complex patterns of transistors.
Intel's component products are primarily microprocessors, microprocessor
peripheral components, memory components and embedded control products. A
microprocessor is the central processing unit (CPU) of a microcomputer. It
processes system data and controls input, output, peripheral and memory devices.
Intel offers microprocessors in two main families: the 32-bit Inte1486(TM) and
Pentium(TM) microprocessor family which is used in personal computers,
minicomputers, parallel processing systems and other applications; and the
i960(R) microprocessor family which is used in embedded control applications.
Intel began volume shipments of the Intel Pentium processor in late 1993. Intel
also offers upgrade processors, including the OverDrive(TM) processor. A
microprocessor peripheral component is a special-purpose chip that works with a
CPU, managing selected input/output or other system functions such as graphics,
disk memory and communications. Memory components are used to store computer
programs and data entered during system operation. Intel's memory components
include flash memories and erasable programmable read only memories (EPROMs).
Embedded control products (microprocessors and microcontrollers) are designed to
be embedded within an application and to be programmed to control the operation
of that application.
Intel provides software for networking, microcomputer operating systems and
developmental and debug support for OEMs incorporating Intel microprocessors or
microprocessor-based systems into their end-user products. Intel also offers a
broad range of board and system-level products for use by OEMs and personal
computer end users. Intel offers singleboard computer modules that can be used
as the building blocks of microcomputer and real-time control systems, all of
which are based on Intel components. Intel branded PC enhancement products,
including both hardware and software, are sold to personal computer users to
exchange or upgrade personal computers or personal computer networks. These
products include add-in cards and chips that increase a system's processing
power or available memory and provide it with the ability to help personal
computer administrators build, use and manage local area networks (LANs). In
addition, Intel offers a line of parallel supercomputers, the Paragon(TM) XP/S
supercomputer, based on multiple microprocessors working simultaneously.
Intel conducts worldwide operations principally in the United States,
Israel, Western Europe, Asia Pacific and Japan.
Intel was incorporated in California in 1968 and reincorporated in Delaware
in 1989. Its principal executive offices are located at 2200 Mission College
Boulevard, Santa Clara, California 95052 and its telephone number is (408)
765-8080.
INTEL OVERSEAS
Intel Overseas was incorporated in California in 1984, and is a wholly
owned subsidiary of Intel. Intel Overseas engages in domestic sales financings
and other special financings and investments. Its principal executive offices
are located at 2200 Mission College Boulevard, Santa Clara, California 95052 and
its telephone number is (408) 765-8080.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the net
proceeds from the sale of Securities offered hereby, after hedging costs, if
any, incurred in connection with the Currency Warrants or Stock Index Warrants,
will be used for general corporate purposes.
5
<PAGE> 7
GENERAL DESCRIPTION OF SECURITIES
Intel may offer under this Prospectus shares of Common Stock, Preferred
Stock, Intel Debt Securities, Common Stock Warrants, Preferred Stock Warrants,
Third Party Warrants, Debt Warrants, Currency Warrants, Stock Index Warrants,
Other Warrants or any combination of the foregoing, either individually or as
units consisting of one or more Securities. Intel Overseas may offer under this
Prospectus Intel Overseas Debt Securities in conjunction with Guarantees of
Intel. The aggregate offering price of Securities offered by Intel and Intel
Overseas under this Prospectus will not exceed $1,361,000,000. If Securities are
offered as units, the terms of the units will be set forth in a Prospectus
Supplement. Certain of the Securities to be offered hereby involve a high degree
of risk. Such risks will be set forth in the Prospectus Supplement relating to
such Security.
DESCRIPTION OF THE COMMON STOCK
General
Under Intel's Restated Certificate of Incorporation (the "Certificate of
Incorporation"), Intel is authorized to issue up to 1.4 billion shares of Common
Stock. The Common Stock is not redeemable, does not have any conversion rights
and is not subject to call. Holders of shares of Common Stock have no preemptive
rights to maintain their percentage of ownership in future offerings or sales of
stock of Intel. Holders of shares of Common Stock have one vote per share in all
elections of directors and on all other matters submitted to a vote of
stockholders of Intel. The holders of Common Stock are entitled to receive
dividends, if any, as and when declared from time to time by the Board of
Directors of Intel out of funds legally available therefor. Upon liquidation,
dissolution or winding up of the affairs of Intel, the holders of Common Stock
will be entitled to participate equally and ratably, in proportion to the number
of shares held, in the net assets of Intel available for distribution to holders
of Common Stock. The shares of Common Stock currently outstanding are fully paid
and nonassessable.
Certain Certificate of Incorporation Provisions
General Effect
Intel has adopted a number of provisions in its Certificate of
Incorporation that might discourage certain types of transactions that involve
an actual or threatened change of control of Intel. The provisions may make it
more difficult and time consuming to change majority control of the Board of
Directors and thus reduce the vulnerability of Intel to an unsolicited offer,
particularly an offer that does not contemplate the acquisition of all of
Intel's outstanding shares.
These provisions are intended to encourage persons seeking to acquire
control of Intel to initiate such an acquisition through arms'-length
negotiations with Intel's management and Board of Directors. Additionally, such
provisions provide management with the time and information necessary to
evaluate a takeover proposal, to study alternative proposals and to help ensure
that the best transaction involving Intel is ultimately undertaken. Nonetheless,
the provisions could have the effect of discouraging a third party from making a
tender offer or otherwise attempting to obtain control of Intel, even though
such an attempt might be beneficial to Intel and its stockholders.
Fair Price Provision
The Certificate of Incorporation contains a fair price provision (the "Fair
Price Provision") which requires that mergers and certain other business
combinations ("Business Combinations") involving Intel and persons beneficially
owning 5% or more of the outstanding shares of Common Stock (an "Interested
Stockholder") either (1) meet certain minimum price and procedural requirements,
(2) be approved by a majority of the members of Intel's Board of Directors who
are unaffiliated with the 5% stockholder and who were directors before the
stockholder became a 5% stockholder (the "Disinterested Directors"), or (3) be
6
<PAGE> 8
approved by the holders of at least 66-2/3% of the voting power of Intel's
outstanding voting stock ("Voting Stock").
Minimum Price and Procedural Requirements. To consummate a Business
Combination based on the minimum price and procedural requirements condition,
all the following conditions must be satisfied:
(a) Intel's stockholders shall have the right to receive cash for
their shares if cash was paid by the Interested Stockholder to acquire any
shares of Intel's stock, or any interest therein, in the two years prior to
the announcement of the transaction;
(b) The aggregate amount of the cash and the fair market value
(calculated in accordance with the Fair Price Provision) to be paid shall
equal the higher of: (1) the highest price per share paid by the Interested
Stockholder in acquiring any shares of Voting Stock during the five years
prior to the date of the consummation of the Business Combination (the
"Consummation Date"), or (2) the fair market value per share of Common
Stock on the date on which the Interested Stockholder became an Interested
Stockholder (the "Determination Date") or the Consummation Date whichever
is higher;
(c) After the Determination Date and prior to the Consummation Date:
(1) if Intel pays regular dividends, Intel shall not have failed to pay
dividends, reduced the annual rate of dividends or failed to increase the
rate of dividends to reflect a reduction in the number of shares of Voting
Stock, unless approved by a majority of the Disinterested Directors; (2)
the Interested Stockholder shall not have acquired any additional shares of
Voting Stock, directly from Intel or otherwise, in any transaction after
the transaction pursuant to which it became an Interested Stockholder; and
(3) the Interested Stockholder shall not have received, at any time after
it became an Interested Stockholder, whether in connection with the
proposed Business Combination or otherwise, the benefit of any loan or
other financial assistance or tax advantage provided by Intel (other than
proportionately as a stockholder); and
(d) A proxy or information statement disclosing the terms and
conditions of the proposed Business Combination and complying with the
requirements of the proxy rules promulgated under the Exchange Act must be
mailed to all stockholders of Intel at least 30 days before the
consummation of a Business Combination. The Disinterested Directors must be
provided in such proxy statement an opportunity to state their views
regarding the proposed Business Combination and to include therewith an
opinion of an independent investment banking firm they have selected.
66-2/3% Vote Required to Amend or Repeal the Fair Price Provision. The
Certificate of Incorporation requires the affirmative vote of the holders of
66-2/3% or more of the outstanding Voting Stock to amend, alter or repeal, or to
adopt any provisions inconsistent with, the Fair Price Provision.
Stockholders' Meetings
The Certificate of Incorporation allows only the Chairman of the Board or
the President or a majority of the Board of Directors to call a stockholders'
meeting. This limitation prevents a stockholder or group of stockholders from
forcing Intel to conduct a stockholders' meeting at any time not sanctioned by
the Chairman of the Board or the President or Board of Directors, regardless of
the number of shares of Common Stock held by such stockholder or group of
stockholders.
No Action by Stockholder Consent
Intel's Certificate of Incorporation prohibits action that is required or
permitted to be taken at any annual or special meeting of stockholders of Intel
from being taken by the written consent of stockholders without a meeting. This
provision may be altered, amended or repealed only if the holders of 66-2/3% or
more of Voting Stock vote in favor of such action.
DESCRIPTION OF THE PREFERRED STOCK
Under the Certificate of Incorporation, the Board of Directors of Intel may
direct the issuance of up to 50,000,000 shares of Preferred Stock in one or more
series and with rights, preferences, privileges and
7
<PAGE> 9
restrictions, including dividend rights, voting rights, conversion rights, terms
of redemption and liquidation preferences, that may be fixed or designated by
the Board of Directors pursuant to a certificate of designation without any
further vote or action by Intel's stockholders. The issuance of Preferred Stock
may have the effect of delaying, deferring or preventing a change in control of
Intel. Preferred Stock, upon issuance against full payment of the purchase price
therefor, will be fully paid and nonassessable. The specific terms of a
particular series of Preferred Stock will be described in the Prospectus
Supplement relating to that series. The description of Preferred Stock set forth
below and the description of the terms of a particular series of Preferred Stock
set forth in the related Prospectus Supplement do not purport to be complete and
are qualified in their entirety by reference to the certificate of designation
relating to that series. The related Prospectus Supplement will contain a
description of certain United States Federal income tax consequences relating to
the purchase and ownership of the series of Preferred Stock described in such
Prospectus Supplement.
The rights, preferences, privileges and restrictions of the Preferred Stock
of each series will be fixed by the certificate of designation relating to such
series. A Prospectus Supplement, relating to each series, will specify the terms
of the Preferred Stock as follows:
(a) The maximum number of shares to constitute the series and the
distinctive designation thereof;
(b) The annual dividend rate, if any, on shares of the series, whether
such rate is fixed or variable or both, the date or dates from which
dividends will begin to accrue or accumulate and whether dividends will be
cumulative;
(c) The price at and the terms and conditions on which the shares of
the series may be redeemed, including the time during which shares of the
series may be redeemed and any accumulated dividends thereon that the
holders of shares of the series shall be entitled to receive upon the
redemption thereof;
(d) The liquidation preference, if any, and any accumulated dividends
thereon, that the holders of shares of the series shall be entitled to
receive upon the liquidation, dissolution or winding up of the affairs of
Intel;
(e) Whether or not the shares of the series will be subject to
operation of a retirement or sinking fund, and, if so, the extent and
manner in which any such fund shall be applied to the purchase or
redemption of the shares of the series for retirement or for other
corporate purposes, and the terms and provisions relating to the operation
of such fund;
(f) The terms and conditions, if any, on which the shares of the
series shall be convertible into, or exchangeable for, shares of any other
class or classes of capital stock of Intel or a third party or any series
of any other class or classes, or of any other series of the same class,
including the price or prices or the rate or rates of conversion or
exchange and the method, if any, of adjusting the same;
(g) The voting rights, if any, on the shares of the series; and
(h) Any or all other preferences and relative, participating,
operational or other special rights or qualifications, limitations or
restrictions thereof.
As described under "Depositary Shares," Intel may, at its option, elect to
offer Depositary Shares evidenced by depositary receipts ("Depositary
Receipts"), each representing a fractional interest (to be specified in the
Prospectus Supplement relating to the particular series of the Preferred Stock)
in a share of the particular series of the Preferred Stock issued and deposited
with a Depositary (as defined below).
DESCRIPTION OF THE DEPOSITARY SHARES
The description set forth below and in the related Prospectus Supplement of
certain provisions of the Deposit Agreement (as defined below) and of the
Depositary Shares and Depositary Receipts does not purport to be complete and is
subject to and qualified in its entirety by reference to the forms of Deposit
Agreement and Depositary Receipts relating to each series of the Preferred Stock
which have been or will be filed with the Commission in connection with the
offering of such series of the Preferred Stock.
8
<PAGE> 10
General
Intel may, at its option, elect to offer fractional interests in shares of
Preferred Stock, rather than shares of Preferred Stock. In the event such option
is exercised, Intel will provide for the issuance by a Depositary to the public
of receipts for Depositary Shares, each of which will represent a fractional
interest as set forth in the Prospectus Supplement relating to a particular
series of the Preferred Stock.
The shares of any series of the Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between Intel and a bank or trust company selected by Intel having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000 (the "Depositary"). The Prospectus Supplement
relating to a series of Depositary Shares will set forth the name and address of
the Depositary. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fractional
interest in a share of Preferred Stock underlying such Depositary Shares, to all
the rights and preferences of the Preferred Stock underlying such Depositary
Shares (including dividend, voting, redemption, conversion and liquidation
rights). The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of Intel, issue temporary Depositary
Receipts substantially identical to (and entitling the holders thereof to all
the rights pertaining to) the definitive Depositary Receipts but not in
definitive form. Definitive Depositary Receipts will be prepared thereafter
without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at Intel's expense.
Upon surrender of Depositary Receipts at the office of the Depositary and
upon payment of the charges provided in the Deposit Agreement and subject to the
terms thereof, a holder of Depositary Shares is entitled to have the Depositary
deliver to such holder the whole shares of Preferred Stock underlying the
Depositary Shares evidenced by the surrendered Depositary Receipts.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed shall be added to and treated as
part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
Intel, sell such property and distribute the net proceeds from such sale to such
holders.
Redemption of Depositary Shares
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days prior
to the date fixed for redemption to the record holders of the Depositary Shares
to be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Stock. Whenever Intel redeems shares of Preferred Stock held by
the Depositary, the Depositary will redeem as of the same redemption date the
number of Depositary Shares relating to shares of Preferred Stock so redeemed.
If less than all of the Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed will be selected by lot or pro rata as may be determined
by the Depositary.
9
<PAGE> 11
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the number of shares of Preferred Stock
underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the number of shares of Preferred Stock
underlying such Depositary Shares in accordance with such instructions, and
Intel will agree to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of Preferred Stock to the extent it does not receive
specific instructions from the holders of Depositary Shares relating to such
Preferred Stock.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between Intel and the Depositary. However, any amendment which materially and
adversely alters the rights of the existing holders of Depositary Shares will
not be effective unless such amendment has been approved by the record holders
of at least a majority of the Depositary Shares then outstanding. A Deposit
Agreement may be terminated by Intel or the Depositary only if (1) all
outstanding Depositary Shares relating thereto have been redeemed or (2) there
has been a final distribution in respect of the Preferred Stock of the relevant
series in connection with any liquidation, dissolution or winding up of Intel
and such distribution has been distributed to the holders of the related
Depositary Shares.
Charges of Depositary
Intel will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. Intel will pay
charges of the Depositary in connection with the initial deposit of the
Preferred Stock and any redemption of the Preferred Stock. Holders of Depositary
Shares will pay transfer and other taxes and governmental charges and such other
charges as are expressly provided in the Deposit Agreement to be for their
accounts.
Miscellaneous
The Depositary will forward to the holders of Depositary Shares all reports
and communications from Intel which are delivered to the Depositary and which
Intel is required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor Intel will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of Intel and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares or Preferred
Stock unless satisfactory indemnity is furnished. They may rely upon written
advice of counsel or accountants, or information provided by persons presenting
Preferred Stock for deposit, holders of Depositary Shares or other persons
believed to be competent and on documents believed to be genuine.
10
<PAGE> 12
Resignation and Removal of Depositary
The Depositary may resign at any time by delivering to Intel notice of its
election to do so, and Intel may at any time remove the Depositary, any such
resignation or removal to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment. Such successor Depositary
must be appointed within 90 days after delivery of the notice of resignation or
removal and must be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000.
DESCRIPTION OF THE DEBT SECURITIES
General
Either Intel or Intel Overseas may offer under this Prospectus Senior Debt
Securities (as defined below) or Subordinated Debt Securities (as defined below)
or any combination of the foregoing. The Debt Securities offered hereby will
represent unsecured general obligations of Intel or Intel Overseas, as the case
may be (each an "Issuer"), and will either (1) rank prior to all subordinated
indebtedness of the Issuer and pari passu with all other indebtedness of the
Issuer outstanding on the date of the Prospectus Supplement relating to such
Debt Securities (the "Senior Debt Securities") or (2) be subordinate in right of
payment to certain other debt obligations of the Issuer outstanding on the date
of the Prospectus Supplement (the "Subordinated Debt Securities"). Intel
Overseas Debt Securities will be fully and unconditionally guaranteed by Intel,
and the obligations of Intel under the Guarantee will either (1) rank prior to
all subordinated indebtedness of Intel and pari passu with all other
indebtedness of Intel outstanding on the date of the Prospectus Supplement
relating to such guaranteed Intel Overseas Debt Securities or (2) be subordinate
in right of payment to certain other debt obligations of Intel outstanding on
the date of the related Prospectus Supplement. The Senior Debt Securities and
the Subordinated Debt Securities may be issued under indentures that incorporate
by reference standard indenture provisions substantially in the form of the
Standard Indenture Provisions of Intel (the "Intel Standard Indenture
Provisions") or Intel Overseas (the "Intel Overseas Standard Indenture
Provisions," collectively with the Intel Standard Indenture Provisions, the
"Standard Indenture Provisions"), each of which is filed as an exhibit to the
1993 Registration Statement. In this Prospectus, any indenture relating to
Senior Debt Securities is referred to as a "Senior Indenture," any indenture
relating to Subordinated Debt Securities is referred to as a "Subordinated
Indenture" and the Senior Indenture and the Subordinated Indenture are
collectively referred to as "Indentures." None of the Indentures will limit the
amount of Debt Securities that may be issued thereunder, and each Indenture will
provide that Debt Securities may be issued thereunder up to an aggregate
principal amount authorized from time to time by the Issuer and may be payable
in any currency or currency unit designated by the Issuer or in amounts
determined by reference to an index. The following summary of certain provisions
that will be contained in the Indenture, if any, pursuant to which Debt
Securities are issued or in the Debt Security, as the case may be, does not
purport to be complete and is qualified in its entirety by reference to the
applicable form of Standard Indenture Provisions or Debt Security, respectively,
filed as an exhibit to the 1993 Registration Statement.
Reference is hereby made to the related Prospectus Supplement for the
following terms and other information to the extent applicable with respect to
the Debt Securities being offered thereby: (1) the designation, aggregate
principal amount, authorized denominations and priority of such Debt Securities;
(2) the percentage of the principal amount at which such Debt Securities will be
issued; (3) the currency, currencies or currency units in which, or index with
respect to which, the principal of, and any interest on, such Debt Securities
may be payable; (4) the date on which such Debt Securities will mature; (5) the
rate per annum at which such Debt Securities will bear interest, if any, or the
method of determination of such rate; (6) the dates from and on which such
interest, if any, will accrue and be payable and the designated record dates for
such interest payments; (7) whether such Debt Securities are to be issued in
whole or in part in the form of one or more global certificates and, if so, the
identity of a depositary (the "Debt Depositary") for such global certificates;
(8) any redemption terms; (9) in the case of Debt Securities offered by Intel
Overseas, the terms of the Guarantee; (10) any conversion or exchange
provisions; and (11) other specific terms.
11
<PAGE> 13
If any of the Debt Securities are sold for foreign currencies or foreign
currency units, the restrictions, elections, tax consequences, specific terms
and other information with respect to such issue of Debt Securities and such
currencies or currency units will be set forth in the Prospectus Supplement
relating thereto.
The Debt Securities may be issued in fully registered form without coupons,
or in a form registered as to principal only with coupons or in bearer forms
with coupons. Unless otherwise specified in the related Prospectus Supplement,
the Debt Securities will be only fully registered Debt Securities. In addition,
Debt Securities of a series may be issuable in the form of one or more global
certificates, which will be denominated in an amount equal to all or a portion
of the aggregate principal amount of such Debt Securities. See "Global Debt
Securities" below.
One or more series of Debt Securities may be sold at a substantial discount
below their stated principal amount, bearing no interest or interest at a rate
that at the time of issuance is below market rates. Federal income tax
consequences and special considerations applicable to any such series will be
described in the Prospectus Supplement relating thereto.
Global Debt Securities
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global certificates that will be deposited with, or on
behalf of, the Debt Depositary identified in the Prospectus Supplement relating
to such series. Unless and until it is exchanged in whole or in part for Debt
Securities in individually certificated form, a global Debt Security may not be
transferred except as a whole to a nominee of the Debt Depositary for such
global Debt Security, or by a nominee for the Debt Depositary to the Debt
Depositary, or to a successor of the Debt Depositary or a nominee of such
successor.
The specific terms of the depositary arrangement with respect to any series
of Debt Securities and the rights of, and limitations on, owners of beneficial
interests in a global Debt Security representing all or a portion of a series of
Debt Securities will be described in the Prospectus Supplement relating to such
series.
Conversion and Exchange
The terms, if any, on which Debt Securities of any series are convertible
into or exchangeable for Common Stock or Preferred Stock or capital stock, debt
or other securities (including options, warrants and other rights) of other
entities ("Third Party Securities"), property or cash, or a combination of any
of the foregoing, will be set forth in the Prospectus Supplement relating
thereto. Such terms may include provisions for conversion or exchange, either
mandatory, at the option of the holder, or at the option of the Issuer, in which
the number of shares of Common Stock, Preferred Stock or Third Party Securities
to be received by the holders of the Debt Securities (the "Debt Holders") would
be calculated according to the factors and at such time as set forth in the
related Prospectus Supplement.
Modification of Terms of Debt Securities
Each Indenture or form of Debt Security, as the case may be, the rights and
obligations of the Issuer and the rights of the Debt Holders may be modified
with respect to one or more series of Debt Securities issued under such
Indenture or pursuant to such form of Debt Security with the consent of the Debt
Holders of not less than a majority in principal amount of the outstanding Debt
Securities of each such series affected by the modification or amendment. No
modification of the terms of payment of principal or interest, and no
modification reducing the percentage required for modification, is effective
against any Debt Holder without its consent.
Events of Default
Each Indenture or form of Debt Security, as the case may be, will provide
that the following are events of default with respect to any series of Debt
Securities issued thereunder: (1) default in the payment of the principal of any
Debt Security of such series when and as the same shall be due and payable; (2)
default in making a sinking fund payment, if any, when and as the same shall be
due and payable by the terms of the
12
<PAGE> 14
Debt Securities of such series; (3) default for 30 days in the payment of any
installment of interest on any Debt Securities of such series; (4) default for
90 days after notice in the performance in any material respect of any other
covenants in respect of the Debt Securities of such series contained in the
Indenture; (5) certain events of bankruptcy, insolvency or reorganization, or
court appointment of a receiver, liquidator or trustee of the Issuer (or
guarantor, if applicable) or its property; and (6) any other event of default
provided in the applicable Board of Directors' resolution or supplemental
indenture under which such series of Debt Securities is issued. An event of
default with respect to a particular series of Debt Securities issued under an
Indenture or form of Debt Security, as the case may be, will not necessarily
constitute an Event of Default with respect to any other series of Debt
Securities issued under such Indenture or form of Debt Security, as the case may
be. The trustee under an Indenture may withhold notice to the Debt Holders of
any series of Debt Securities of any default with respect to such series (except
in the payment of principal or interest) if it considers such withholding in the
interests of such Debt Holders.
If an event of default with respect to any series of Debt Securities shall
have occurred and be continuing, the appropriate trustee under the Indenture, if
any, or the Debt Holders of not less than 25% in aggregate principal amount of
the Debt Securities of such series may declare the principal, or in the case of
discounted Debt Securities, such portion thereof as may be described in the
Prospectus Supplement, of all the Debt Securities of such series to be due and
payable immediately.
The Issuer will file at least annually with each trustee under an Indenture
a certificate, signed by specified officers, stating whether or not such
officers have knowledge of any default, and, if so, specifying each such default
and the nature thereof.
Subject to provisions relating to its duties in case of default, a trustee
under the Indentures shall be under no obligation to exercise any of its rights
or powers under the applicable Indenture at the request, order or direction of
any Debt Holders, unless such Debt Holders shall have offered to such trustee
reasonable indemnity. Subject to such provisions for indemnification, the Debt
Holders of a majority in principal amount of the Debt Securities of any series
may direct the time, method and place of conducting any proceeding for any
remedy available to the appropriate trustee, or exercising any trust or power
conferred upon such trustee, with respect to the Debt Securities of such series.
Payment and Transfer
Principal of, and premium and interest, if any, on, fully registered Debt
Securities will be payable at the corporate trust office of the trustee or any
other office maintained by the Issuer for such purposes, provided that payment
of interest, if any, will be made, unless otherwise provided in the related
Prospectus Supplement, by check mailed to the persons in whose names such Debt
Securities are registered at the close of business on the day or days specified
in the Prospectus Supplement. The principal of, and premium and interest, if
any, on, Debt Securities in other forms will be payable in the manner and at the
place or places as designated by the Issuer and specified in the related
Prospectus Supplement.
Fully registered Debt Securities may be transferred or exchanged at the
corporate trust office of the trustee or at any other office or agency
maintained by the Issuer for such purposes, subject to the limitations in the
applicable Indenture, without the payment of any service charge except for any
tax or governmental charge incidental thereto. Provisions with respect to the
transfer and exchange of Debt Securities in other forms will be set forth in the
related Prospectus Supplement.
Defeasance
An Indenture will provide that it will cease to be of further effect with
respect to a certain series of Debt Securities (except for certain obligations
to register the transfer or exchange of Debt Securities) if (1) the Issuer
delivers to the trustee for the Debt Securities of such series for cancellation
all Debt Securities of all series and the coupons, if any, appertaining thereto,
or (2) if the Issuer deposits into trust with the trustee money or United States
government obligations, that, through the payment of interest thereon and
principal thereof in accordance with their terms, will provide money in an
amount sufficient to pay all the principal of,
13
<PAGE> 15
and interest on, the Securities of such series on the dates such payments are
due or redeemable in accordance with the terms of such Securities.
Senior Debt Securities
The Senior Debt Securities will constitute part of the Senior Indebtedness
(as defined below) of the Issuer and will rank pari passu with all outstanding
senior debt. Except as set forth in the related Prospectus Supplement, the
outstanding Subordinated Indebtedness (as defined below) has been, or will be,
subordinated, as to payment of principal, and premium and interest, if any, to
Senior Indebtedness, including the Senior Debt Securities.
Subordinated Debt Securities
Except as described in the related Prospectus Supplement, the Subordinated
Debt Securities will be junior and subordinate in right of payment to all Senior
Indebtedness of the Issuer, whether outstanding at the date of the Subordinated
Indenture, if any, or issuance, as the case may be, or incurred after such date.
The term "Senior Indebtedness" will be defined to mean (1) all indebtedness of
the Issuer for money borrowed (including purchase-money obligations with an
original maturity in excess of one year) or evidence by debentures, notes or
other corporate debt securities or similar instruments issued by the Issuer, (2)
indebtedness or obligations of the Issuer constituting a guarantee of
indebtedness of or an obligation of others of the type referred to in (1) above,
or (3) any modification, extension, renewal or refunding of any of the
indebtedness or obligations referred to in (1) or (2) above, except any
indebtedness or obligation or modification, extension, renewal or refunding
that, under the express provisions of the instrument creating or evidencing it,
or pursuant to which it is outstanding, is not superior in right of payment to
the Subordinated Debt Securities. "Subordinated Indebtedness" will be defined to
mean all indebtedness of the Issuer that is subordinate and junior in right of
payment to any other indebtedness of the Issuer.
Upon any distribution of assets of the Issuer in connection with any
dissolution, winding up, liquidation or reorganization of the Issuer, the
holders of all Senior Indebtedness will first be entitled to receive payment in
full of principal of, and interest, if any, on, such Senior Indebtedness before
the holders of Subordinated Debt Securities are entitled to receive any payment
thereon. If any Subordinated Debt Security is declared due and payable because
of the occurrence of an event of default, under circumstances when the
provisions of the foregoing sentence are not applicable, the trustee under a
Subordinated Indenture, if any, or the holders of Subordinated Debt Securities
shall be entitled to payment only after there shall first have been paid in full
the Senior Indebtedness outstanding at the time such Subordinated Debt Security
so becomes due and payable because of such event of default. During the
continuance of any default with respect to Senior Indebtedness, or if a default
would be caused by any payment upon or in respect of the Subordinated Debt
Securities, or if any Subordinated Debt Securities are declared or become
payable before their stated maturity because of an event of default, no payment
may be made by the Issuer or be due or payable upon or in respect of the
Subordinated Debt Securities until all Senior Indebtedness has been paid in
full.
This subordination will not prevent the occurrence of any event of default.
There is no limitation on the issuance of additional Senior Indebtedness in a
Subordinated Indenture.
Intel Guarantee
Intel will fully and unconditionally guarantee to the holders from time to
time of any Intel Overseas Debt Securities: (1) the full and prompt payment of
the principal of and any redemption premium on any Debt Securities when and as
the same shall become due, whether at the stated maturity thereof, by
acceleration, call for redemption or otherwise and (2) the full and prompt
payment of the interest on any Debt Securities when and as the same shall become
due. The Guarantee will remain in effect until the entire principal of, and
interest and premium if any on, the Intel Overseas Debt Securities shall have
been paid in full or otherwise discharged in accordance with the provisions of
the Indenture, if any, or form of Intel Overseas Debt Security, as the case may
be. In the event of a default in the payment of principal of or any premium on
any Intel Overseas Debt Security when and as the same shall become due, whether
at the stated maturity thereof, by
14
<PAGE> 16
acceleration, call for redemption or otherwise, or in the event of a default in
any sinking fund payment, or in the event of a default in the payment of any
interest on any Debt Security when and as the same shall become due, the Trustee
or holders thereof will have the right to proceed first and directly against
Intel without first proceeding against Intel Overseas or exhausting any other
remedies which it may have. Any Guarantee may be subordinated to other
obligations of Intel in the same manner as described in the first and third
sentences of the second paragraph under "Subordinated Debt Securities."
DESCRIPTION OF THE WARRANTS TO PURCHASE COMMON OR PREFERRED STOCK
The following statements with respect to the Common Stock Warrants and
Preferred Stock Warrants (collectively, the "Stock Warrants") are summaries of,
and subject to, the detailed provisions of a warrant agreement ("Stock Warrant
Agreement") to be entered into by Intel and a warrant agent to be selected at
the time of issue (the "Stock Warrant Agent"), which Stock Warrant Agreement may
include or incorporate by reference standard warrant provisions substantially in
the form of the Standard Stock Warrant Provisions (the "Stock Warrant
Provisions") filed as an exhibit to the 1993 Registration Statement.
General
The Stock Warrants, evidenced by warrant certificates (the "Stock Warrant
Certificates"), may be issued under the Stock Warrant Agreement independently or
together with any Securities offered by any Prospectus Supplement and may be
attached to or separate from such Securities. If Stock Warrants are offered, the
related Prospectus Supplement will describe the terms of the Stock Warrants,
including without limitation the following: (1) the offering price, if any; (2)
the designation and terms of the Common or Preferred Stock purchasable upon
exercise of the Stock Warrants; (3) the number of shares of Common or Preferred
Stock purchasable upon exercise of one Stock Warrant and the initial price at
which such shares may be purchased upon exercise; (4) the date on which the
right to exercise the Stock Warrants shall commence and the date on which such
right shall expire; (5) Federal income tax consequences; (6) call provisions, if
any; (7) the currency, currencies or currency units in which the offering price,
if any, and exercise price are payable; (8) the antidilution provisions of the
Stock Warrants; and (9) any other terms of the Stock Warrants. The shares of
Common or Preferred Stock issuable upon exercise of the Stock Warrants will,
when issued in accordance with the Stock Warrant Agreement, be fully paid and
nonassessable.
Exercise of Stock Warrants
Stock Warrants may be exercised by surrendering to the Stock Warrant Agent
the Stock Warrant certificate signed by the warrantholder, or its duly
authorized agent, indicating the warrantholder's election to exercise all or a
portion of the Stock Warrants evidenced by the certificate. Surrendered Stock
Warrant certificates shall be accompanied by payment of the aggregate exercise
price of the Stock Warrants to be exercised, as set forth in the related
Prospectus Supplement, which payment may be made in the form of cash or a check
equal to the exercise price. Certificates evidencing duly exercised Stock
Warrants will be delivered by the Stock Warrant Agent to the transfer agent for
the Common Stock or the Preferred Stock, as the case may be. Upon receipt
thereof, the transfer agent shall deliver or cause to be delivered, to or upon
the written order of the exercising warrantholder, a certificate representing
the number of shares of Common Stock or Preferred Stock purchased. If fewer than
all of the Stock Warrants evidenced by any certificate are exercised, the Stock
Warrant Agent shall deliver to the exercising warrantholder a new Stock Warrant
certificate representing the unexercised Stock Warrants.
Antidilution Provisions
The exercise price payable and the number of shares of Common or Preferred
Stock purchasable upon the exercise of each Stock Warrant will be subject to
adjustment in certain events, including the issuance of a stock dividend to
holders of Common or Preferred Stock, respectively, or a combination,
subdivision or reclassification of Common or Preferred Stock, respectively. In
lieu of adjusting the number of shares of Common or Preferred Stock purchasable
upon exercise of each Stock Warrant, Intel may elect to adjust the
15
<PAGE> 17
number of Stock Warrants. No adjustment in the number of shares purchasable upon
exercise of the Stock Warrants will be required until cumulative adjustments
require an adjustment of at least 1% thereof. Intel may, at its option, reduce
the exercise price at any time. No fractional shares will be issued upon
exercise of Stock Warrants, but Intel will pay the cash value of any fractional
shares otherwise issuable. Notwithstanding the foregoing, in case of any
consolidation, merger, or sale or conveyance of the property of Intel as an
entirety or substantially as an entirety, the holder of each outstanding Stock
Warrant shall have the right to the kind and amount of shares of stock and other
securities and property (including cash) receivable by a holder of the number of
shares of Common or Preferred Stock into which such Stock Warrants were
exercisable immediately prior thereto.
No Rights as Stockholders
Holders of Stock Warrants will not be entitled, by virtue of being such
holders, to vote, to consent, to receive dividends, to receive notice as
stockholders with respect to any meeting of stockholders for the election of
directors of Intel or any other matter, or to exercise any rights whatsoever as
stockholders of Intel.
DESCRIPTION OF THE THIRD PARTY WARRANTS
The following statements with respect to the Third Party Warrants are
summaries of, and subject to, the detailed provisions of a warrant agreement
(the "Third Party Warrant Agreement") to be entered into by Intel and a warrant
agent to be selected at the time of issue (the "Third Party Warrant Agent"),
which Third Party Warrant Agreement may include or incorporate by reference
standard warrant provisions substantially in the form of the Stock Warrant
Provisions filed as an exhibit to the 1993 Registration Statement or other
provisions set forth in the Third Party Warrant Agreement which will be filed as
an exhibit to or incorporated by reference in the Registration Statement of
which this Prospectus forms a part.
General
The Third Party Warrants, evidenced by warrant certificates (the "Third
Party Warrant Certificates"), may be issued under the Third Party Warrant
Agreement independently or together with any Securities offered by any
Prospectus Supplement and may be attached to or separate from such Securities.
If Third Party Warrants are offered, the related Prospectus Supplement will
describe the terms of the warrants, including without limitation the following:
(1) the offering price, if any; (2) the designation, aggregate principal amount
and terms of the Third Party Securities purchasable upon exercise of the
warrants; (3) if applicable, the designation and terms of the Third Party
Securities with which the Third Party Warrants are issued and the number of
Third Party Warrants issued with each such Third Party Security; (4) if
applicable, the date on and after which the Third Party Warrants and the related
Third Party Securities will be separately transferable; (5) the number or
principal amount of Third Party Securities purchasable upon exercise of one
Third Party Warrant and the price at which such principal amount of Third Party
Securities may be purchased upon exercise; (6) the date on which the right to
exercise the Third Party Warrants shall commence and the date on which such
right shall expire; (7) Federal income tax consequences; (8) whether the
warrants represented by the Third Party Warrant certificates will be issued in
registered or bearer form; (9) the currency, currencies or currency units in
which the offering price, if any, and exercise price are payable; (10) the
antidilution provisions of the Third Party Warrants; and (11) any other terms of
the Third Party Warrants.
Third Party Warrant Certificates may be exchanged for new Third Party
Warrant Certificates of different denominations and may (if in registered form)
be presented for registration of transfer at the corporate trust office of the
Third Party Warrant Agent, which will be listed in the related Prospectus
Supplement, or at such other office as may be set forth therein. Warrantholders
do not have any of the rights of holders of Third Party Securities (except as
may be otherwise set forth in the Prospectus Supplement).
Exercise of Third Party Warrants
Third Party Warrants may be exercised by surrendering the Third Party
Warrant Certificate at the corporate trust office of the Third Party Warrant
Agent, with the form of election to purchase on the reverse
16
<PAGE> 18
side of the Third Party Warrant Certificate properly completed and executed, and
by payment in full of the exercise price, as set forth in the Prospectus
Supplement. Upon the exercise of Third Party Warrants, the Third Party Warrant
Agent will, as soon as practicable, deliver the Third Party Securities in
authorized denominations in accordance with the instructions of the exercising
warrantholder and at the sole cost and risk of such holder. If less than all of
the Third Party Warrants evidenced by the Third Party Warrant Certificate are
exercised, a new Third Party Warrant Certificate will be issued for the
remaining amount of Third Party Warrants.
DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES
The following statements with respect to the Debt Warrants are summaries
of, and subject to, the detailed provisions of a warrant agreement (the "Debt
Warrant Agreement") to be entered into by Intel and a warrant agent to be
selected at the time of issue (the "Debt Warrant Agent"), which Debt Warrant
Agreement may include or incorporate by reference standard warrant provisions
substantially in the form of the Standard Debt Securities Warrant Provisions
(the "Debt Warrant Provisions") filed as an exhibit to the 1993 Registration
Statement.
General
The Debt Warrants, evidenced by warrant certificates (the "Debt Warrant
Certificates"), may be issued under the Debt Warrant Agreement independently or
together with any Securities offered by any Prospectus Supplement and may be
attached to or separate from such Securities. If Debt Warrants are offered, the
related Prospectus Supplement will describe the terms of the warrants, including
without limitation the following: (1) the offering price, if any; (2) the
designation, aggregate principal amount and terms of the Debt Securities
purchasable upon exercise of the warrants; (3) if applicable, the designation
and terms of the Debt Securities with which the Debt Warrants are issued and the
number of Debt Warrants issued with each such Debt Security; (4) if applicable,
the date on and after which the Debt Warrants and the related Securities will be
separately transferable; (5) the principal amount of Debt Securities purchasable
upon exercise of one Debt Warrant and the price at which such principal amount
of Debt Securities may be purchased upon exercise; (6) the date on which the
right to exercise the Debt Warrants shall commence and the date on which such
right shall expire; (7) Federal income tax consequences; (8) whether the
warrants represented by the Debt Warrant certificates will be issued in
registered or bearer form; (9) the currency, currencies or currency units in
which the offering price, if any, and exercise price are payable; (10) the
antidilution provisions of the Debt Warrants; and (11) any other terms of the
Debt Warrants.
Debt Warrant Certificates may be exchanged for new Debt Warrant
Certificates of different denominations and may (if in registered form) be
presented for registration of transfer at the corporate trust office of the Debt
Warrant Agent, which will be listed in the related Prospectus Supplement, or at
such other office as may be set forth therein. Warrantholders do not have any of
the rights of holders of Debt Securities (except to the extent that the consent
of warrantholders may be required for certain modifications of the terms of an
Indenture or form of the Debt Security, as the case may be, and the series of
Debt Securities issuable upon exercise of the Debt Warrants) and are not
entitled to payments of principal of and interest, if any, on the Debt
Securities.
Exercise of Debt Warrants
Debt Warrants may be exercised by surrendering the Debt Warrant Certificate
at the corporate trust office of the Debt Warrant Agent, with the form of
election to purchase on the reverse side of the Debt Warrant Certificate
properly completed and executed, and by payment in full of the exercise price,
as set forth in the Prospectus Supplement. Upon the exercise of Debt Warrants,
the Debt Warrant Agent will, as soon as practicable, deliver the Debt Securities
in authorized denominations in accordance with the instructions of the
exercising warrantholder and at the sole cost and risk of such holder. If less
than all of the Debt Warrants evidenced by the Debt Warrant Certificate are
exercised, a new Debt Warrant Certificate will be issued for the remaining
amount of Debt Warrants.
17
<PAGE> 19
DESCRIPTION OF THE FOREIGN CURRENCY EXCHANGE WARRANTS
Risk Factors
Investment in the Currency Warrants may entail a number of risks, including
those related to fluctuations in the foreign currency markets and potential
illiquidity in the secondary market. Prospective purchasers of the Currency
Warrants should recognize that their Currency Warrants, other than those having
a Minimum Expiration Value, may expire worthless. Purchasers should be prepared
to sustain a loss of some or all of the purchase price of their Currency
Warrants. Prospective purchasers of the Currency Warrants should be experienced
with respect to options and options transactions and understand the risks of
foreign currency transactions and should reach an investment decision only after
careful consideration, with their advisors, of the suitability of the Currency
Warrants in light of their particular financial circumstances, the information
set forth below and the information regarding the Currency Warrants set forth in
the related Prospectus Supplement. Prospective purchasers of the Currency
Warrants are urged to read the information set forth under "Risk Factors" in the
related Prospectus Supplement.
General
The following description of the terms of the Currency Warrants sets forth
certain general terms and provisions of the Currency Warrants to which any
Prospectus Supplement may relate. The particular terms of the Currency Warrants
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions do not apply to the Currency Warrants so offered will be
described in such Prospectus Supplement.
Each issue of Currency Warrants will be issued under a separate warrant
agreement (each, a "Currency Warrant Agreement") to be entered into between
Intel and a bank or trust company, as warrant agent (the "Currency Warrant
Agent"), all as described in the Prospectus Supplement relating to such Currency
Warrants. A single bank or trust company may act as Currency Warrant Agent for
more than one issue of Currency Warrants. The Currency Warrant Agent will act
solely as the agent of Intel under the applicable Currency Warrant Agreement and
will not assume any obligation or relationship of agency or trust for or with
any holders of such Currency Warrants (the "Currency Warrantholders"). A copy of
the form of Currency Warrant Agreement, including warrant certificates, as
amended, is filed as an exhibit to the 1988 Registration Statement. The
following summaries of certain provisions of the Currency Warrants and the form
of Currency Warrant Agreement do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all the provisions of the
Currency Warrants and the Currency Warrant Agreement.
Intel will have the right to "reopen" any outstanding issue of Currency
Warrants by issuing additional Currency Warrants of such issue. Intel has not
determined the specific circumstances under which it may decide to reopen an
outstanding issue of Currency Warrants. Although Intel would do so only in a
manner which it believes would not have a material adverse effect on the trading
price of the outstanding Currency Warrants of such issue, there can be no
assurance that the reopening of any outstanding issue of Currency Warrants would
not have a material adverse effect on the trading price of outstanding Currency
Warrants of such issue.
Each Currency Warrant will entitle the Currency Warrantholder to receive
from Intel upon exercise the Cash Settlement Value of such Warrant, which will
be a cash amount in U.S. dollars (1) in the case of a Currency Put Warrant,
determined by reference to the amount, if any, by which a predetermined exchange
rate of a Reference Currency as compared to the U.S. dollar or a predetermined
level or range of levels of a Currency Index, as applicable (the "Strike Rate"),
exceeds the then-current spot exchange rate of such Reference Currency as
compared to the U.S. dollar or the then-current level or range of levels of such
Currency Index, as applicable (the "Spot Rate") on a date following the date of
exercise (the "Valuation Date") (which will generally be the relevant business
day following the date of exercise) and (2) in the case of a Currency Call
Warrant, determined by reference to the amount, if any, by which the Spot Rate
on the Valuation Date exercise exceeds the Strike Rate. The Prospectus
Supplement for an issue of Currency Warrants will set forth the formula pursuant
to which the Cash Settlement Value of such Currency Warrants will be determined.
The Strike Rate may either be a fixed amount or an amount that varies during the
term of
18
<PAGE> 20
such Currency Warrants in accordance with a schedule or formula. Certain
Currency Warrants will, if specified in the related Prospectus Supplement,
entitle the Currency Warrantholder to receive from Intel, upon automatic
exercise at expiration and under any other circumstances specified in the
related Prospectus Supplement, an amount equal to the greater of the applicable
Cash Settlement Value and the Minimum Expiration Value of such Currency
Warrants. In addition, if so specified in the related Prospectus Supplement,
following the occurrence of an Extraordinary Event or Exercise Limitation Event
(as defined below) described in such Prospectus Supplement, the Cash Settlement
Value of a Currency Warrant may, at the option of Intel, be determined on a
different basis, including in connection with automatic exercise at expiration.
A Currency Warrant will be settled only in U.S. dollars and, accordingly,
will not entitle a Currency Warrantholder to sell, deliver, purchase or take
delivery of any non-U.S. currency to or from Intel, and Intel will be under no
obligation to, nor will it, purchase or take delivery of or sell or deliver any
non-U.S. currency from or to Currency Warrantholders pursuant to the Currency
Warrants.
Unless otherwise specified in the related Prospectus Supplement, the
Currency Warrants will be deemed to be automatically exercised upon expiration
and, if so specified in the related Prospectus Supplement, may be deemed to be
automatically exercised upon the occurrence of other events. Upon such automatic
exercise, Currency Warrantholders will be entitled to receive the Cash
Settlement Value of the Currency Warrants, if any, except that holders of any
Currency Warrants having a Minimum Expiration Value will be entitled to receive
an amount equal to the greater of such Cash Settlement Value and the applicable
Minimum Expiration Value. The Minimum Expiration Value may be either a fixed
amount or an amount that varies during the term of the Currency Warrants in
accordance with a schedule or formula. Any Minimum Expiration Value applicable
to an issue of Currency Warrants, as well as any additional circumstances
resulting in the automatic exercise of such Warrants, will be specified in the
related Prospectus Supplement.
If so specified in the related Prospectus Supplement, the Currency Warrants
may be canceled by Intel upon the occurrence of one or more events
("Extraordinary Events") described in such Prospectus Supplement. In addition,
if so specified in the related Prospectus Supplement, any exercise of the
Currency Warrants may be suspended by Intel, and the valuation of or payment for
such Warrants may be postponed upon the occurrence of an Extraordinary Event or
certain other events ("Exercise Limitation Events") described in such Prospectus
Supplement. Upon such cancellation or such suspension or postponement, the
affected Warrantholders may be entitled to receive only the applicable
Cancellation Amount or Alternative Settlement Amount specified in such
Prospectus Supplement. The Cancellation Amount or Alternative Settlement Amount
may be either a fixed amount or an amount that varies during the term of the
Currency Warrants in accordance with a specified schedule or formula.
Reference is hereby made to the Prospectus Supplement relating to the
particular issue of Currency Warrants offered thereby for the terms of such
Currency Warrants, including, where applicable: (1) the aggregate amount of such
Currency Warrants; (2) the offering price of such Currency Warrants; (3) either
(a) the Reference Currency, which may be a nonU.S. currency or units of two or
more non-U.S. currencies, or (b) the Currency Index (including each Index
Currency included therein), which may be compiled and published by a third party
or based on Index Currencies selected by Intel or an affiliate of Intel, in
either case relating to such Currency Warrants; (4) whether such Currency
Warrants are Currency Put Warrants or Currency Call Warrants; (5) the date on
which the right to exercise such Currency Warrants commences and the date on
which such right expires; (6) the manner in which such Currency Warrants may be
exercised; (7) the minimum number, if any, of such Currency Warrants exercisable
at any one time; (8) the maximum number, if any, of such Currency Warrants that
may, subject to Intel's election, be exercised by all Currency Warrantholders
(or by any person or entity) on any day; (9) any provisions permitting a
Currency Warrantholder to condition an exercise notice on the absence of certain
specified changes in the Spot Rate after the exercise date, any provisions
permitting Intel to suspend exercise of or to redeem such Currency Warrants
based on market conditions or other circumstances and any other special
provisions relating to the exercise of such Currency Warrants; (10) any
provisions for the automatic exercise of such Currency Warrants other than at
expiration; (11) any provisions permitting Intel to suspend the exercise of, or
postpone the valuation of or payment for, such Currency Warrants; (12) the
method of determining the amount payable
19
<PAGE> 21
in connection with the exercise or cancellation of such Currency Warrants,
including the Strike Rate, the method of determining the Spot Rate, the method
of expressing movements in either the exchange rate of the applicable Reference
Currency in relation to U.S. dollars as a cash amount in U.S. dollars or the
applicable Currency Index as a cash amount in U.S. dollars, and any Cancellation
Amount or Minimum Expiration Value applicable to such Currency Warrants; (13)
the time or times at which amounts will be payable in respect of such Currency
Warrants following exercise or automatic exercise; (14) a national securities
exchange or quotation system on which such Currency Warrants will be listed;
(15) any provisions for issuing such Currency Warrants in certificated form from
the perspective of Currency Warrantholders; (16) if such Currency Warrants are
not issued in book-entry form, the place or places at which payment of the Cash
Settlement Value, Cancellation Amount, if any, Alternative Settlement Amount, if
any, and Minimum Expiration Value, if any, of such Currency Warrants is to be
made by Intel, and (17) any other material terms of such Currency Warrants.
Prospective purchasers of Currency Warrants should be aware of special
United States federal income tax considerations applicable to instruments such
as the Currency Warrants. The Prospectus Supplement relating to each issue of
Currency Warrants will describe such tax considerations. The summary of United
States federal income tax considerations contained in such Prospectus Supplement
will be presented for informational purposes only, however, and will not be
intended as legal or tax advice or prospective purchasers. Prospective
purchasers of Currency Warrants are urged to consult their own tax advisors
prior to any acquisition of Currency Warrants.
Book-Entry Procedures and Settlement
Unless otherwise specified in the related Prospectus Supplement, the
Currency Warrants offered thereby will be issued in book-entry form from the
perspective of Currency Warrantholders. Such Currency Warrants will be issued in
the form of one or more global certificates registered in the name of the
nominee of the depository, The Depository Trust Company ("DTC," which term, as
used herein, includes any successor depository selected by Intel).
DTC is a limited-purpose trust company which was created to hold securities
for its participating organizations (the "Participants") and to facilitate the
clearance and settlement of securities transactions between Participants in such
securities through electronic book-entry changes in accounts of its
Participants. Participants include securities brokers and dealers, banks and
trust companies, clearing corporations and certain other organizations. Access
to DTC's system is also available to others such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly ("indirect participants"). Persons
who are not Participants may beneficially own securities held by DTC only
through Participants or indirect participants.
Under the related Currency Warrant Agreement, DTC's nominee for all
purposes will be considered the sole owner or holder of the Currency Warrants
that are held in book-entry form. Currency Warrantholders that hold Currency
Warrants in book-entry form will not be entitled to have Currency Warrants
registered in their names, will not be considered the holders thereof under the
related Currency Warrant Agreement and will not be entitled to exchange their
book-entry Currency Warrants for Currency Warrants in definitive form ("Currency
Warrant Certificates"), except under the limited circumstances described below.
A Currency Warrantholder that is not a Participant will have its ownership
of a Currency Warrant recorded on or through the records of the brokerage firm
or other entity that maintains such Currency Warrantholder's account. In turn,
the total number of Currency Warrants in book-entry form held by an individual
brokerage firm for its clients will be maintained on the records of DTC in the
name of such brokerage firm (or in the name of a Participant that acts as agent
for the Currency Warrantholder's brokerage firm if such firm is not a
Participant). Therefore, a Currency Warrantholder must rely upon the foregoing
procedures to evidence such Currency Warrantholder's ownership of a Currency
Warrant in book-entry form. Transfer of ownership of any Currency Warrant may be
effected only through DTC and, if applicable, the brokerage firm or other entity
that maintains the selling Currency Warrantholder's book-entry account. The laws
of some states of the United States may require that certain purchasers of
securities take physical
20
<PAGE> 22
delivery of such securities in definitive form. Such limits on transfer and such
laws may impair the ability to own, transfer or pledge Currency Warrants in
book-entry form.
Neither Intel nor the Currency Warrant Agent will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial owners of book-entry Currency Warrants, or for
maintaining, supervising or reviewing any records relating to such beneficial
owners.
The Cash Settlement Value and, if applicable, the Cancellation Amount,
Alternative Settlement Amount or Minimum Expiration Value payable in respect of
Currency Warrants in book-entry form will be paid by the Currency Warrant Agent
to DTC or, if so specified in the related Prospectus Supplement, to the
Participants. DTC will be responsible for crediting the amount of payments that
it receives from the Currency Warrant Agent to the accounts of, or the Currency
Warrant Agent will make such payments directly to, the Participants or indirect
participants, as the case may be, in accordance with each of their respective
standard procedures. Each Participant or indirect participant will be
responsible for disbursing such payments to the Currency Warrantholders that it
represents and to each brokerage firm or other entity for which it acts as
agent. Each such brokerage firm or other entity will be responsible for
disbursing funds to the Currency Warrantholders that it represents. It is
suggested that any purchaser of Currency Warrants with accounts at more than one
brokerage firm only effect transactions in the Currency Warrants, including
exercises, through the brokerage firm or firms through which such purchaser's
Currency Warrants are held.
Intel understands that under existing industry practices, in the event that
Intel requests any action of Currency Warrantholders or that Currency
Warrantholders which own Currency Warrants in book-entry form desire to give or
take any action which Currency Warrantholders are entitled to give or take under
the Currency Warrant Agreement, DTC would authorize the Participants to give or
take such action or would otherwise act upon the instructions of Currency
Warrantholders owning Currency Warrants through such Participants. Accordingly,
each Currency Warrantholder which owns a Currency Warrant in book-entry form
must rely on the procedures of DTC and, if such Currency Warrantholder is not a
Participant, on the procedures of the Participant through which such Currency
Warrantholder owns its Currency Warrant, to exercise any rights of a Currency
Warrantholder under the Currency Warrant Agreement.
If DTC is at any time unwilling or unable to continue as depository and a
successor depository is not appointed by Intel within ninety days, or if certain
events of bankruptcy or insolvency occur with respect to Intel, Intel will issue
Currency Warrant Certificates in exchange for the global certificate or
certificates. In addition, Intel may at any time determine not to have the
Currency Warrants available in book-entry form and, in such event, will issue
Currency Warrant Certificates in exchange for the global certificate or
certificates. In either instance, an owner of a beneficial interest in the
global certificate or certificates will be entitled to have Currency Warrants
equal in aggregate amount to such beneficial interest registered in its name and
will be entitled to physical delivery of Currency Warrant Certificates
representing such Currency Warrants. The registered owner of such Currency
Warrants will be entitled to receive the Cash Settlement Value and, if
applicable, the Minimum Expiration Value payable in respect of such Currency
Warrants, upon surrender of such Currency Warrant Certificates to the Currency
Warrant Agent in accordance with the procedures set forth in the related
Prospectus Supplement.
Listing
Unless otherwise indicated in the related Prospectus Supplement, the
Currency Warrants offered thereby will be listed on a national securities
exchange or quotation system as specified in such Prospectus Supplement. It is
expected that such exchange or system will cease trading an issue of Currency
Warrants as of the close of business on the expiration date of such Currency
Warrants or the date on which such Currency Warrants are delisted on such
exchange or system.
Modification
Unless otherwise indicated in a Prospectus Supplement, the related Currency
Warrant Agreement and the terms of the related Currency Warrants may be amended
by Intel and the Currency Warrant Agent, without the consent of any Currency
Warrantholders, for the purpose of curing any ambiguity or curing,
21
<PAGE> 23
correcting or supplementing any defective or inconsistent provision contained
therein, maintaining the listing of such Currency Warrants on a national
securities exchange or quotation system, maintaining the registration of such
Currency Warrants under the Exchange Act, permitting the issuance of individual
Currency Warrant certificates to Currency Warrantholders, reflecting the
issuance by Intel of additional Currency Warrants of the same issue or
reflecting the appointment of a successor depository, or in any other manner
which Intel may deem necessary or desirable and which, as determined by Intel in
its sole discretion, will not materially and adversely affect the interests of
the Currency Warrantholders.
Intel and the Currency Warrant Agent also may modify or amend the Currency
Warrant Agreement and the terms of the related Currency Warrants, with the
consent of the holders of not less than a majority in number of the then
outstanding Currency Warrants affected by such modification or amendment, for
any purpose, provided that no such modification or amendment that (1) decreases
the Strike Rate (in the case of Currency Put Warrants) or increases the Strike
Rate (in the case of Currency Call Warrants), (2) otherwise changes the
determination of the Cash Settlement Value or Cancellation Amount, Alternative
Settlement Amount or Minimum Expiration Value, if any, of the Warrants (or any
aspects of such determination) so as to reduce the amount receivable upon
exercise, cancellation or expiration, (3) shortens the period of time during
which the Currency Warrants may be exercised, (4) decreases the Minimum
Expiration Value, if any, or (5) otherwise materially and adversely affects the
exercise rights of the Currency Warrantholders or reduces the percentage of the
number of outstanding Currency Warrants the consent of whose holders is required
for modification or amendment of the Currency Warrant Agreement or the terms of
the related Currency Warrants, may be made without the consent of each Currency
Warrantholder affected thereby.
Additional Issuances of Other Currency Warrants
Intel shall be entitled to issue additional Currency Warrants on the same
or different terms from any outstanding Currency Warrants without the consent of
the Currency Warrantholders.
Merger or Consolidation, Sale or Other Dispositions
Unless otherwise indicated in the related Prospectus Supplement, if at any
time there shall be a merger or consolidation, sale, transfer, conveyance or
other disposition of substantially all of the assets of Intel, then in any such
event the successor or assuming corporation shall succeed to and be substituted
for Intel, with the same effect as if it had been named in the Currency Warrant
Agreement and in the related Currency Warrants as Intel. Intel shall thereupon
be relieved of any further obligation under such Currency Warrant Agreement and
Currency Warrants, and, in the event of any such sale, transfer, conveyance
(other than by way of lease) or other disposition, Intel as the predecessor
corporation may thereupon or at any time thereafter be dissolved, wound up or
liquidated.
Enforceability of Rights by Currency Warrantholders
Any Currency Warrantholder may, without the consent of the Currency Warrant
Agent, enforce by appropriate legal action, on its own behalf, its right to
exercise, and to receive payment for, its Currency Warrants.
Federal Income Tax Considerations
Prospective purchasers of Currency Warrants should be aware of special
United States federal income tax considerations applicable to instruments such
as the Currency Warrants. The Prospectus Supplement relating to each issue of
Currency Warrants will describe such tax considerations. The summary of United
States federal income tax considerations contained in such Prospectus Supplement
will be presented for informational purposes only, however, and will not be
intended as legal or tax advice to prospective purchasers. Prospective
purchasers of Currency Warrants are urged to consult their own tax advisors
prior to any acquisition of Currency Warrants.
22
<PAGE> 24
DESCRIPTION OF THE STOCK INDEX WARRANTS
Risk Factors
Investment in the Stock Index Warrants involves a high degree of risk,
including risks arising from fluctuations in the prices of the Underlying
Stocks, risks relating to the Stock Index, general risks applicable to the stock
market (or markets) on which the Underlying Stocks are traded and, in the case
of Stock Index Warrants relating to a Foreign Stock Index and settled based on
then-current currency exchange rates, foreign exchange risks. Prospective
purchasers of the Stock Index Warrants should recognize that their Stock Index
Warrants, other than those having a Minimum Expiration Value, may expire
worthless. Purchasers should be prepared to sustain a loss of some or all of the
purchase price of their Stock Index Warrants. Prospective purchasers of the
Stock Index Warrants should be experienced with respect to options and options
transactions and understand the risks of stock index (and, if applicable,
foreign currency) transactions and should reach an investment decision only
after careful consideration, with their advisors, of the suitability of the
Stock Index Warrants in light of their particular financial circumstances, the
information set forth below and the information regarding the Stock Index
Warrants and the Stock Index set forth in the related Prospectus Supplement.
Prospective purchasers of the Stock Index Warrants are urged to read the
information set forth under "Risk Factors" in the related Prospectus Supplement.
General
The following description of the terms of the Stock Index Warrants sets
forth certain general terms and provisions of the Stock Index Warrants to which
any Prospectus Supplement may relate. The particular terms of the Stock Index
Warrants offered by any related Prospectus Supplement and the extent, if any, to
which such general provisions do not apply to the Stock Index Warrants so
offered will be described in such Prospectus Supplement.
Each issue of Stock Index Warrants will be issued under a separate warrant
agreement (each, a "Stock Index Warrant Agreement") to be entered into between
Intel and a bank or trust company, as warrant agent (the "Stock Index Warrant
Agent"), all as described in the Prospectus Supplement relating to such Stock
Index Warrants. A single bank or trust company may act as Stock Index Warrant
Agent for more than one issue of Stock Index Warrants. The Stock Index Warrant
Agent will act solely as the agent of Intel under the applicable Stock Index
Warrant Agreement and will not assume any obligation or relationship of agency
or trust for or with any holders of such Stock Index Warrants (the "Stock Index
Warrantholders"). A copy of the form of Stock Index Warrant Agreement, including
the form of warrant certificate, is filed as an exhibit to the 1992 Registration
Statement. The following summaries of certain provisions of the Stock Index
Warrants and the form of Stock Index Warrant Agreement do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all of the provisions of the Stock Index Warrants and the Stock Index
Warrant Agreement.
Intel will have the right to "reopen" any outstanding issue of Stock Index
Warrants by issuing additional Stock Index Warrants of such issue. Intel has not
determined the specific circumstances under which it may decide to reopen an
outstanding issue of Stock Index Warrants. Although Intel would do so only in a
manner which it believes would not have a material adverse effect on the trading
price of the outstanding Stock Index Warrants of such issue, there can be no
assurance that the reopening of any outstanding issue of Stock Index Warrants
would not have a material adverse effect on the trading price of outstanding
Stock Index Warrants of such issue.
Each Stock Index Warrant will entitle the Stock Index Warrantholder to
receive from Intel upon exercise the Cash Settlement Value of such Stock Index
Warrant, which will be an amount in cash (1) in the case of a Stock Index Put
Warrant, determined by reference to the amount, if any, by which a predetermined
level or range of levels of the Stock Index (the "Strike Index") exceeds the
level of the Stock Index (the "Spot Index") on the Valuation Date, (2) in the
case of a Stock Index Call Warrant, determined by reference to the amount, if
any, by which the Spot Index on the Valuation Date exceeds the Strike Index and
(3) in the case of any other type of Stock Index Warrant, in the manner
described in the related Prospectus Supplement. The
23
<PAGE> 25
Prospectus Supplement for an issue of Stock Index Warrants will set forth the
formula pursuant to which the Cash Settlement Value of such Stock Index Warrants
will be determined. The Strike Index may either be a fixed level of the Stock
Index or a level that varies during the term of the Stock Index Warrants in
accordance with a schedule or formula. Certain Stock Index Warrants will, if
specified in the related Prospectus Supplement, entitle the Stock Index
Warrantholder to receive from Intel, upon automatic exercise at expiration and
under any other circumstances specified in the related Prospectus Supplement, an
amount equal to the greater of the applicable Cash Settlement Value and the
Minimum Expiration Value of such Stock Index Warrants. In addition, if so
specified in the related Prospectus Supplement, following the occurrence of an
Extraordinary Event or Exercise Limitation Event described in such Prospectus
Supplement, the Cash Settlement Value of a Stock Index Warrant may, at the
option of Intel, be determined on a different basis, including in connection
with automatic exercise at expiration. Unless otherwise specified in the related
Prospectus Supplement, the Stock Index will be an established, broadly-based
index related to a major domestic or foreign equity trading market, and the Cash
Settlement Value, if any (and, if applicable, the Minimum Expiration Value), of
the Stock Index Warrants will be payable in U.S. dollars.
Unless otherwise indicated in the related Prospectus Supplement, a Stock
Index Warrant will be settled only in cash and, accordingly, will not require or
entitle a Stock Index Warrantholder to sell, deliver, purchase or take delivery
of any securities (including the Underlying Stocks) to or from Intel, and Intel
will be under no obligation to, nor will it, purchase or take delivery of or
sell or deliver any securities (including the Underlying Stocks) from or to
Stock Index Warrantholders pursuant to the Stock Index Warrants.
Unless otherwise specified in the related Prospectus Supplement, the Stock
Index Warrants will be deemed to be automatically exercised upon expiration and,
if so specified in the related Prospectus Supplement, may be deemed to be
automatically exercised upon the occurrence of other events. Upon such automatic
exercise, Stock Index Warrantholders will be entitled to receive the Cash
Settlement Value of the Stock Index Warrants, except that holders of Stock Index
Warrants having a Minimum Expiration Value will be entitled to receive an amount
equal to the greater of such Cash Settlement Value and the applicable Minimum
Expiration Value. The Minimum Expiration Value may be either a fixed amount or
an amount that varies during the term of the Stock Index Warrants in accordance
with a schedule or formula. Any Minimum Expiration Value applicable to an issue
of Stock Index Warrants, as well as any additional circumstances resulting in
the automatic exercise of such Stock Index Warrants, will be specified in the
related Prospectus Supplement.
If so specified in the related Prospectus Supplement, the Stock Index
Warrants may be canceled by Intel, upon the occurrence of an Extraordinary Event
described in such Prospectus Supplement. In addition, if so specified in the
related Prospectus Supplement any exercise of the Stock Index Warrants may be
suspended by Intel, and the valuation of or payment for such Warrants may be
postponed upon the occurrence of an Exercise Limitation Event described in such
Prospectus Supplement. Upon such cancellation or such suspension or
postponement, the affected Stock Index Warrantholders may be entitled to receive
only the applicable Cancellation Amount or Alternative Settlement Amount
specified in such Prospectus Supplement. The Cancellation Amount or Alternative
Settlement Amount may be either a fixed amount or an amount that varies during
the term of the Stock Index Warrants in accordance with a specified schedule or
formula.
Reference is hereby made to the Prospectus Supplement relating to the
particular issue of Stock Index Warrants offered thereby for the terms of such
Stock Index Warrants, including, where applicable: (1) the aggregate amount of
such Stock Index Warrants; (2) the offering price of such Stock Index Warrants;
(3) the Stock Index for such Stock Index Warrants, which may be based on U.S. or
foreign stocks or a combination thereof and may be a preexisting U.S. or foreign
stock index compiled and published by a third party or an index based on a group
of Underlying Stocks selected by Intel solely in connection with the issuance of
such Stock Index Warrants, and certain information regarding such Stock Index
and the Underlying Stocks; (4) whether such Stock Index Warrants are Stock Index
Put Warrants, Stock Index Call Warrants or another type of Stock Index Warrants;
(5) the date on which the right to exercise such Stock Index Warrants commences
and the date on which such right expires; (6) the manner in which such Stock
Index Warrants may be exercised; (7) the minimum number, if any, of such Stock
Index Warrants exercisable at any one time; (8) the maximum number, if any, of
such Stock Index Warrants that may, subject to Intel's election, be
24
<PAGE> 26
exercised by all Stock Index Warrantholders (or by any person or entity) on any
day; (9) any provisions permitting a Stock Index Warrantholder to condition an
exercise notice on the absence of certain specified changes in the Spot Index
after the exercise date, any provisions permitting Intel to suspend exercise of
or to redeem such Stock Index Warrants based on market conditions or other
circumstances and any other special provisions relating to the exercise of such
Stock Index Warrants; (10) any provisions for the automatic exercise of such
Stock Index Warrants other than at expiration; (11) any provisions permitting
Intel to suspend the exercise of or postpone the valuation of or payment for,
such Stock Index Warrants upon the occurrence of certain events; (12) the method
of determining the amount payable in connection with the exercise or
cancellation of such Stock Index Warrants, including the Strike Index, the
method of determining the Spot Index, the method of expressing movements in the
Stock Index as a cash amount in the currency in which the Cash Settlement Value
of such Stock Index Warrants is payable, including, in the case of Stock Index
Warrants relating to a Foreign Stock Index, the method of converting amounts in
the relevant foreign currency or currencies into U.S. dollars (or such other
currency in which such Stock Index Warrants are payable), and any Cash
Settlement Value (which may be based on a different formula upon the occurrence
of an Extraordinary Event or Exercise Limitation Event) or Cancellation Amount,
Alternative Settlement Amount or Minimum Expiration Value, if any, applicable to
such Stock Index Warrants; (13) the method of providing for a substitute index
or otherwise determining the amount payable in connection with the exercise of
such Stock Index Warrants if the Stock Index changes or ceases to be made
available by its publisher; (14) the time or times at which amounts will be
payable in respect of such Stock Index Warrants following exercise or automatic
exercise; (15) a national securities exchange or quotation system on which such
Stock Index Warrants will be listed; (16) any provisions for issuing such Stock
Index Warrants in certificated form from the perspective of Stock Index
Warrantholders; (17) if such Stock Index Warrants are not issued in book-entry
form, the place or places at and the procedures by which payment of the Cash
Settlement Value, Cancellation Amount, if any, Alternative Settlement Amount, if
any, and Minimum Expiration Value, if any, of such Stock Index Warrants is to be
made by Intel; and (18) any other terms of such Stock Index Warrants.
Book-Entry Procedures and Settlement
Unless otherwise specified in the related Prospectus Supplement, the
procedures set forth under "Description of the Foreign Currency Exchange
Warrants -- Book-Entry Procedures and Settlement" will apply to the Stock Index
Warrants.
Listing
Unless otherwise indicated in the related Prospectus Supplement, the Stock
Index Warrants offered thereby will be listed on a national securities exchange
or quotation system as specified in such Prospectus Supplement. It is expected
that such exchange or system will cease trading an issue of Stock Index Warrants
as of the close of business on the expiration date of such Stock Index Warrants
or on the date such Stock Index Warrants are delisted on such exchange or
system. If the Stock Index Warrants are not traded on a national securities
exchange or quotation system or are delisted from an exchange or system, the
liquidity of the Stock Index Warrants would be adversely affected.
Before Stock Index Warrants may be listed on a national securities exchange
or quotation system, the Stock Index underlying such Stock Index Warrants must
have been previously reviewed and approved by the Commission in the context of a
proposal to trade stock index options or stock index warrants relating to the
Stock Index on a national securities exchange or quotation system.
Alternatively, if no standardized options or warrants have previously traded on
such Stock Index, then the listing exchange or system must obtain the
Commission's approval to list and trade the Stock Index Warrants.
Modification
Unless otherwise specified in a Prospectus Supplement, the related Stock
Index Warrant Agreement and the terms of the related Stock Index Warrants may be
amended by Intel and the Stock Index Warrant Agent, without the consent of the
holders of any Stock Index Warrants, for the purpose of curing any ambiguity, or
of curing, correcting or supplementing any defective or inconsistent provision
contained therein, maintaining the
25
<PAGE> 27
listing of such Stock Index Warrants on a national securities exchange or
quotation system, maintaining registration of such Stock Index Warrants under
the Exchange Act, permitting the issuance of individual certificates evidencing
Stock Index Warrants to Stock Index Warrantholders, reflecting the issuance by
Intel of additional Stock Index Warrants of the same issue or reflecting the
appointment of a successor depository, or for any other purpose which Intel may
deem necessary or desirable and which will not materially and adversely affect
the interests of the Stock Index Warrantholders.
Unless otherwise specified in a Prospectus Supplement, Intel and the Stock
Index Warrant Agent also may modify or amend the related Stock Index Warrant
Agreement and the terms of the related Stock Index Warrants, with the consent of
the holders of not less than a majority in number of the then outstanding Stock
Index Warrants affected by such modification or amendment, for any purpose,
provided that no such modification or amendment that (1) decreases the Strike
Index (in the case of Stock Index Put Warrants) or increases the Strike Index
(in the case of Stock Index Call Warrants), (2) otherwise changes the
determination of the Cash Settlement Value, or Cancellation Amount, Alternative
Settlement Value or Minimum Expiration Value, if any, of the Stock Index
Warrants (or any aspects of such determination) so as to reduce the amount
receivable upon exercise, cancellation or expiration, (3) shortens the period of
time during which the Stock Index Warrants may be exercised, (4) decreases the
Minimum Expiration Value, if any, or (5) otherwise materially and adversely
affects the exercise rights of the holders of the Stock Index Warrants or
reduces the percentage of the number of outstanding Stock Index Warrants the
consent of whose holders is required for modification or amendment of the Stock
Index Warrant Agreement or the terms of the related Stock Index Warrants, may be
made without the consent of each Stock Index Warrantholder affected thereby.
Additional Issuances of Other Stock Index Warrants; Merger, Consolidation, Sale
or Other Dispositions; Enforceability of Rights by Stock Index Warrantholders;
and Federal Income Tax Consequences
Unless otherwise indicated in the related Prospectus Supplement, the
information set forth under "Description of the Foreign Currency Exchange
Warrants -- Additional Issuances of Other Currency Warrants; -- Merger,
Consolidation, Sale or Other Dispositions; -- Enforceability of Rights by
Currency Warrantholders; and -- Federal Income Tax Consequences" will apply to
the Stock Index Warrants and the holders thereof.
DESCRIPTION OF THE OTHER WARRANTS
Risk Factors
Investment in the Other Warrants may entail a number of risks, including
those related to fluctuations in the price of the underlying Exercise Item and
potential illiquidity in the secondary market. Prospective purchasers of the
Other Warrants should recognize that Other Warrants, other than those having a
Minimum Expiration Value, may expire worthless. Purchasers should be prepared to
sustain a loss of some or all of the purchase price of Other Warrants.
Prospective purchasers of the Other Warrants should be experienced with respect
to options and options transactions and understand the risks of commodity-based
transactions and should reach an investment decision only after careful
consideration, with their advisors, of the suitability of the Other Warrants in
light of their particular financial circumstances, the information set forth
below and the information regarding the Other Warrants set forth in the related
Prospectus Supplement. Prospective purchasers of the Other Warrants are urged to
read the information set forth under "Risk Factors" in the related Prospectus
Supplement.
General
The following description of the terms of the Other Warrants sets forth
certain general terms and provisions of the Other Warrants to which any
Prospectus Supplement may relate. The particular terms of the Other Warrants
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions do not apply to the Other Warrants so offered will be
described in such Prospectus Supplement.
Each issue of Other Warrants will be issued under a separate warrant
agreement (each, an "Other Warrant Agreement") to be entered into between Intel
and a bank or trust company, as warrant agent (the "Other Warrant Agent"), all
as described in the Prospectus Supplement relating to such Other Warrants. A
26
<PAGE> 28
single bank or trust company may act as Other Warrant Agent for more than one
issue of Other Warrants. The Other Warrant Agent will act solely as the agent of
Intel under the applicable Other Warrant Agreement and will not assume any
obligation or relationship of agency or trust for or with any holders of such
Other Warrants (the "Other Warrantholders"). A copy of the form of Other Warrant
Agreement, including warrant certificates, as amended, will be filed as an
exhibit to or incorporated by reference in the 1993 Registration Statement. The
following summaries of certain provisions of the Other Warrants and the form of
Other Warrant Agreement do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, all the provisions of the Other
Warrants and the Other Warrant Agreement.
Intel will have the right to "reopen" any outstanding issue of Other
Warrants by issuing additional Other Warrants of such issue. Intel has not
determined the specific circumstances under which it may decide to reopen an
outstanding issue of Other Warrants. Although Intel would do so only in a manner
which it believes would not have a material adverse effect on the trading price
of the outstanding Other Warrants of such issue, there can be no assurance that
the reopening of any outstanding issue of Other Warrants would not have a
material adverse effect on the trading price of outstanding Other Warrants of
such issue.
Each Other Warrant will entitle the Other Warrantholder to receive from
Intel upon exercise the Cash Settlement Value of such Warrant, which will be a
cash amount in U.S. dollars (1) in the case of an Other Put Warrant, determined
by reference to the amount, if any, by which a predetermined value of a
Commodity or a predetermined level or range of levels of a Commodity Index, as
applicable (the "Commodity Strike Rate"), exceeds the then-current value of a
Commodity or the level of the Commodity Index, as applicable (the "Commodity
Spot Rate") on a date following the date of exercise (the "Valuation Date")
(which will generally be the relevant business day following the date of
exercise) and (2) in the case of an Other Call Warrant, determined by reference
to the amount, if any, by which the Commodity Spot Rate on the Valuation Date
exercise exceeds the Commodity Strike Rate. The Prospectus Supplement for an
issue of Other Warrants will set forth the formula pursuant to which the Cash
Settlement Value of such Other Warrants will be determined. The Commodity Strike
Rate may either be a fixed amount or an amount that varies during the term of
such Other Warrants in accordance with a schedule or formula. Certain Other
Warrants will, if specified in the related Prospectus Supplement, entitle the
Other Warrantholder to receive from Intel, upon automatic exercise at expiration
and under any other circumstances specified in the related Prospectus
Supplement, an amount equal to the greater of the applicable Cash Settlement
Value and the Minimum Expiration Value of such Other Warrants. In addition, if
so specified in the related Prospectus Supplement, following the occurrence of
an Extraordinary Event or Exercise Limitation Event (as defined below) described
in such Prospectus Supplement, the Cash Settlement Value of an Other Warrant
may, at the option of Intel, be determined on a different basis, including in
connection with automatic exercise at expiration.
An Other Warrant will be settled only in U.S. dollars and, accordingly,
will not entitle an Other Warrantholder to sell, deliver, purchase or take
delivery of any Commodity or non-U.S. currency to or from Intel, and Intel will
be under no obligation to, nor will it, purchase or take delivery of or sell or
deliver any Commodity or non-U.S. currency from or to Other Warrantholders
pursuant to the Other Warrants.
Unless otherwise specified in the related Prospectus Supplement, the Other
Warrants will be deemed to be automatically exercised upon expiration and, if so
specified in the related Prospectus Supplement, may be deemed to be
automatically exercised upon the occurrence of other events. Upon such automatic
exercise, Other Warrantholders will be entitled to receive the Cash Settlement
Value of the Other Warrants, if any, except that holders of any Other Warrants
having a Minimum Expiration Value will be entitled to receive an amount equal to
the greater of such Cash Settlement Value and the applicable Minimum Expiration
Value. The Minimum Expiration Value may be either a fixed amount or an amount
that varies during the term of the Other Warrants in accordance with a schedule
or formula. Any Minimum Expiration Value applicable to an issue of Other
Warrants, as well as any additional circumstances resulting in the automatic
exercise of such Warrants, will be specified in the related Prospectus
Supplement.
If so specified in the related Prospectus Supplement, the Other Warrants
may be canceled by Intel upon the occurrence of one or more events
("Extraordinary Events") described in such Prospectus Supplement. In addition,
if so specified in the related Prospectus Supplement, any exercise of the Other
Warrants may be
27
<PAGE> 29
suspended by Intel, and the valuation of or payment for such Warrants may be
postponed upon the occurrence of an Extraordinary Event or certain other events
("Exercise Limitation Events") described in such Prospectus Supplement. Upon
such cancellation or such suspension or postponement, the affected
Warrantholders may be entitled to receive only the applicable Cancellation
Amount or Alternative Settlement Amount specified in such Prospectus Supplement.
The Cancellation Amount or Alternative Settlement Amount may be either a fixed
amount or an amount that varies during the term of the Other Warrants in
accordance with a specified schedule or formula.
Reference is hereby made to the Prospectus Supplement relating to the
particular issue of Other Warrants offered thereby for the terms of such Other
Warrants, including, where applicable: (1) the aggregate amount of such Other
Warrants; (2) the offering price of such Other Warrants; (3) either (a) the
Commodity, or (b) the Commodity Index, which may be compiled and published by a
third party or based on Commodity Indices selected by Intel or an affiliate of
Intel, in either case relating to such Other Warrants; (4) whether such Other
Warrants are Other Put Warrants or Other Call Warrants; (5) the date on which
the right to exercise such Other Warrants commences and the date on which such
right expires; (6) the manner in which such Other Warrants may be exercised; (7)
the minimum number, if any, of such Other Warrants exercisable at any one time;
(8) the maximum number, if any, of such Other Warrants that may, subject to
Intel's election, be exercised by all Other Warrantholders (or by any person or
entity) on any day; (9) any provisions permitting an Other Warrantholder to
condition an exercise notice on the absence of certain specified changes in the
Commodity Spot Rate after the exercise date, any provisions permitting Intel to
suspend exercise of or to redeem such Other Warrants based on market conditions
or other circumstances and any other special provisions relating to the exercise
of such Other Warrants; (10) any provisions for the automatic exercise of such
Other Warrants other than at expiration; (11) any provisions permitting Intel to
suspend the exercise of, or postpone the valuation of or payment for, such Other
Warrants; (12) the method of determining the amount payable in connection with
the exercise or cancellation of such Other Warrants, including the Commodity
Strike Rate, the method of determining the Commodity Spot Rate, the method of
expressing movements in either the Commodity or the Commodity Index as a cash
amount in U.S. dollars, and any Cancellation Amount or Minimum Expiration Value
applicable to such Other Warrants; (13) the time or times at which amounts will
be payable in respect of such Other Warrants following exercise or automatic
exercise; (14) a national securities exchange or quotation system on which such
Other Warrants will be listed; (15) any provisions for issuing such Other
Warrants in certificated form from the perspective of Other Warrantholders; (16)
if such Other Warrants are not issued in book-entry form, the place or places at
which payment of the Cash Settlement Value, Cancellation Amount, if any,
Alternative Settlement Amount, if any, and Minimum Expiration Value, if any, of
such Other Warrants is to be made by Intel, and (17) any other material terms of
such Other Warrants.
Prospective purchasers of Other Warrants should be aware of special United
States federal income tax considerations applicable to instruments such as the
Other Warrants. The Prospectus Supplement relating to each issue of Other
Warrants will describe such tax considerations. The summary of United States
federal income tax considerations contained in such Prospectus Supplement will
be presented for informational purposes only, however, and will not be intended
as legal or tax advice or prospective purchasers. Prospective purchasers of
Other Warrants are urged to consult their own tax advisors prior to any
acquisition of Other Warrants.
Book-Entry Procedures and Settlement
Unless otherwise specified in the related Prospectus Supplement, the
procedures set forth under "Description of the Foreign Currency Exchange
Warrants -- Book-Entry Procedures and Settlement" will apply to the Other
Warrants.
Listing
Unless otherwise indicated in the related Prospectus Supplement, the Other
Warrants offered thereby will be listed on a national securities exchange or
quotation system as specified in such Prospectus Supplement. It is expected that
such exchange or system will cease trading an issue of Other Warrants as of
28
<PAGE> 30
the close of business on the expiration date of such Other Warrants or on the
date such Other Warrants are delisted on such exchange or system. If the Other
Warrants are not traded on a national securities exchange or quotation system or
are delisted from an exchange or system, the liquidity of the Other Warrants
would be adversely affected.
Before Other Warrants may be listed on a national securities exchange or
quotation system, the Exercise Item underlying such Other Warrants must have
been previously reviewed and approved by the Commission in the context of a
proposal to trade options or warrants relating to the Exercise Item on a
national securities exchange or quotation system. The listing exchange or system
may be required to obtain the Commission's approval to list and trade the Other
Warrants.
Modification
Unless otherwise indicated in a Prospectus Supplement, the related Other
Warrant Agreement and the terms of the related Other Warrants may be amended by
Intel and the Other Warrant Agent, without the consent of any Other
Warrantholders, for the purpose of curing any ambiguity or curing, correcting or
supplementing any defective or inconsistent provision contained therein,
maintaining the listing of such Other Warrants on a national securities exchange
or quotation system, maintaining the registration of such Other Warrants under
the Exchange Act, permitting the issuance of individual Other Warrant
certificates to Other Warrantholders, reflecting the issuance by Intel of
additional Other Warrants of the same issue or reflecting the appointment of a
successor depository, or in any other manner which Intel may deem necessary or
desirable and which, as determined by Intel in its sole discretion, will not
materially and adversely affect the interests of the Other Warrantholders.
Intel and the Other Warrant Agent also may modify or amend the Other
Warrant Agreement and the terms of the related Other Warrants, with the consent
of the holders of not less than a majority in number of the then outstanding
Other Warrants affected by such modification or amendment, for any purpose,
provided that no such modification or amendment that (1) decreases the Strike
Rate (in the case of Other Put Warrants) or increases the Strike Rate (in the
case of Other Call Warrants), (2) otherwise changes the determination of the
Cash Settlement Value or Cancellation Amount, Alternative Settlement Amount or
Minimum Expiration Value, if any, of the Warrants (or any aspects of such
determination) so as to reduce the amount receivable upon exercise, cancellation
or expiration, (3) shortens the period of time during which the Other Warrants
may be exercised, (4) decreases the Minimum Expiration Value, if any, or (5)
otherwise materially and adversely affects the exercise rights of the Other
Warrantholders or reduces the percentage of the number of outstanding Other
Warrants the consent of whose holders is required for modification or amendment
of the Other Warrant Agreement or the terms of the related Other Warrants, may
be made without the consent of each Other Warrantholder affected thereby.
Additional Issuances of Other Stock Index Warrants; Merger, Consolidation, Sale
or Other Dispositions; Enforceability of Rights by Stock Index Warrantholders;
and Federal Income Tax Consequences
Unless otherwise indicated in the related Prospectus Supplement, the
information set forth under "Description of the Foreign Currency Exchange
Warrants -- Additional Issuances of Other Currency Warrants; -- Merger,
Consolidation, Sale or Other Dispositions; -- Enforceability of Rights by
Currency Warrantholders; and -- Federal Income Tax Consequences" will apply to
the Other Warrants and the holders thereof.
PLAN OF DISTRIBUTION
Intel and Intel Overseas may sell Securities (1) through underwriters or
dealers, (2) directly to one or more purchasers, or (3) through agents. A
Prospectus Supplement will set forth the terms of the offering of the Securities
offered thereby, including the name or names of any underwriters, the purchase
price of the Securities, and the proceeds to Intel or Intel Overseas from the
sale, any underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price, any discounts or concessions
allowed or reallowed or paid to dealers, and any securities exchange or market
on which the Securities may be
29
<PAGE> 31
listed. Only underwriters so named in such Prospectus Supplement are deemed to
be underwriters in connection with the Securities offered thereby.
If underwriters are used in the sale, the Securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the Securities will be subject to
certain conditions precedent, and the underwriters will be obligated to purchase
all the Securities of the series offered by the Prospectus Supplement if any of
the Securities are purchased. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
Securities may also be sold directly by Intel or Intel Overseas or through
agents designated by Intel or Intel Overseas from time to time. Any agent
involved in the offering and sale of Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by Intel or
Intel Overseas to such agent will be set forth, in the Prospectus Supplement.
Unless otherwise indicated in the related Prospectus Supplement, any such agent
will be acting on a best-efforts basis for the period of its appointment.
If so indicated in the related Prospectus Supplement, Intel or Intel
Overseas will authorize agents, underwriters or dealers to solicit offers by
certain institutional investors to purchase Securities providing for payment and
delivery on a future date specified in such Prospectus Supplement. There may be
limitations on the minimum amount which may be purchased by any such
institutional investor or on the portion of the aggregate principal amount of
the particular Securities which may be sold pursuant to such arrangements.
Institutional investors to which such offers may be made, when authorized,
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and such other
institutions as may be approved by Intel or Intel Overseas, as the case may be.
The obligations of any such purchasers pursuant to such delayed delivery and
payment arrangements will not be subject to any conditions except (1) the
purchase by an institution of the particular Securities shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such institution is subject, and (2) if the particular Securities are
being sold to underwriters, Intel or Intel Overseas shall have sold to such
underwriters the total principal amount of such Securities less the principal
amount thereof covered by such arrangements. Underwriters will not have any
responsibility in respect of the validity of such arrangements or the
performance of Intel or Intel Overseas or such institutional investors
thereunder.
All Securities offered other than Common Stock will be a new issue of
securities with no established trading market. Any underwriters to whom such
Securities are sold by Intel or Intel Overseas for public offering and sale may
make a market in such Securities, but such underwriters will not be obligated to
do so and may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of or the trading markets for any
such Securities.
Agents and underwriters may be entitled under agreements entered into with
Intel or Intel Overseas to indemnification by Intel or Intel Overseas against
certain civil liabilities, including liabilities under the Securities Act of
1933, as amended, or to contribution with respect to payments which the agents
or underwriters may be required to make in respect thereof. Agents and
underwriters may engage in transactions with, or perform services for, Intel or
Intel Overseas in the ordinary course of business.
ERISA CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
imposes certain restrictions on employee benefit plans ("Plans") which are
subject to ERISA, and on those persons who are fiduciaries with respect to such
Plans. In accordance with ERISA's general fiduciary requirements, a fiduciary
with respect to any such Plan who is considering the purchase of Currency
Warrants, Stock Index Warrants or Other Warrants on behalf of such Plan should
determine whether such purchase is permitted under the governing Plan documents,
is prudent and is appropriate for the Plan in view of its overall investment
policy and the composition and diversification of its portfolio. See the
discussions of the risks relating to an investment in such Warrants herein.
Other provisions of ERISA and section 4975 of the Internal Revenue
30
<PAGE> 32
Code of 1986, as amended (the "Code"), prohibit certain transactions involving
the assets of a Plan and persons who have certain specified relationships to the
Plan ("parties in interest" within the meaning of ERISA or "disqualified
persons" within the meaning of section 4975 of the Code). Thus, a Plan fiduciary
considering the purchase of such Warrants should consider whether such a
purchase might constitute or result in a prohibited transaction under ERISA or
section 4975 of the Code.
An underwriter involved in the sale of Securities and its affiliates, may
be considered a "party in interest" or a "disqualified person" with respect to a
Plan purchasing Securities because, among other reasons, such underwriter or its
affiliate provides services to the Plan. Intel might also be a "party in
interest" or "disqualified person" with respect to such a Plan. For a Plan
subject to the fiduciary responsibility provisions of ERISA or the prohibited
transaction provisions of section 4975 of the Code (including individual
retirement arrangements and other plans described in section 4975(a(1) of the
Code) the purchase of Securities from an underwriter considered a "party in
interest" or a "disqualified person" may constitute or result in a non-exempt
prohibited transaction under ERISA or section 4975 of the Code, unless such
Securities are acquired pursuant to and in accordance with an applicable
exemption, such as Prohibited Transaction Class Exemption ("PTCE") 84-14 (an
exemption for certain transactions determined by an independent qualified
professional asset manager), PTCE 91-38 (an exemption for certain transactions
involving bank collective funds) or PTCE 90-1 (an exemption for certain
transactions involving insurance company pooled separate accounts), or PTCE
75-1, Part II or Part III (exemptions for certain principal transactions
involving sales or purchases of securities between Plans and "parties in
interest"). If Intel is a "party in interest" or "disqualified person" with
respect to a Plan, such Plan should assure itself that PTCE 84-14, PTCE 91-38
and/or PTCE 90-1 is applicable. Any pension or other employee benefit plan
considering the acquisition of Securities should consult with its counsel.
LEGAL MATTERS
The legality of the Securities offered hereby will be passed upon by
Pillsbury Madison & Sutro, Menlo Park, California, counsel for Intel and Intel
Overseas.
EXPERTS
The consolidated financial statements of Intel Corporation incorporated by
reference in Intel Corporation's Annual Report (Form 10-K) for the year ended
December 25, 1993, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon incorporated therein and herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
31
<PAGE> 33
INDEX OF TERMS
<TABLE>
<CAPTION>
PAGE ON WHICH
TERM TERM IS DEFINED
- ---------------------------------------------
<S> <C>
PAGE ON WHICH
TERM TERM IS DEFINED
- ---------------------------------------------
Alternative Settlement
Amount...................... 2
Business Combinations......... 7
Cancellation Amount........... 2
Cash Settlement Value......... 2
Certificate of
Incorporation............... 7
Code.......................... 30
Commission.................... 4
Commodity..................... 2
Commodity Index............... 2
Commodity Spot Rate........... 26
Commodity Strike Rate......... 26
Common Stock.................. 1
Common Stock Warrants......... 1
Company....................... 5
Consummation Date............. 8
Currency...................... 2
Currency Call Warrants........ 2
Currency Index................ 3
Currency Put Warrants......... 2
Currency Warrant Agent........ 18
Currency Warrant Agreement.... 18
Currency Warrant
Certificates................ 20
Currency Warrants............. 1
Currency Warrantholders....... 18
Debt Depositary............... 12
Debt Holders.................. 13
Debt Securities............... 1
Debt Warrants................. 1
Debt Warrant Agent............ 11
Debt Warrant Agreement........ 17
Debt Warrant Certificates..... 17
Debt Warrant Provisions....... 17
Deposit Agreement............. 9
Depositary.................... 9
Depositary Receipts........... 9
Depositary Shares............. 1
Determination Date............ 8
Disinterested Directors....... 7
Disqualified Preson........... 30
DTC........................... 20
ERISA......................... 29
Exchange Act.................. 4
Exercise Item................. 2
Exercise Limitation Events.... 19
Extraordinary Events.......... 19
Fair Price Provision.......... 7
Foreign Stock Index........... 3
Guarantee..................... 1
Indentures.................... 12
Index Currencies.............. 2
indirect participants......... 20
Intel......................... 1
Intel Debt Securities......... 1
Intel Overseas Corporation.... 1
Intel Overseas Debt
Securities.................. 1
Intel Overseas Standard
Indenture Provisions........ 12
Intel Standard Indenture
Provisions.................. 12
Interested Stockholder........ 7
Issuer........................ 12
Minimum Expiration Value...... 3
1988 Registration Statement... 4
1992 Registration Statement... 4
1993 Registration Statement... 4
1994 Registration Statement... 4
Other Call Warrants........... 3
Other Put Warrants............ 3
Other Warrant Agent........... 26
Other Warrant Agreement....... 26
Other Warrantholder........... 26
Other Warrants................ 1
Participants.................. 20
Parties in Interest........... 30
Plans......................... 37
Preferred Stock............... 1
Preferred Stock Warrants...... 1
Prospectus Supplement......... 2
PTCE.......................... 30
Reference Currency............ 2
Registrant.................... 5
Registration Statements....... 4
Securities.................... 1
Securities Act................ 4
Senior Debt Securities........ 12
Senior Indebtedness........... 14
Senior Indenture.............. 12
Spot Index.................... 23
Spot Rate..................... 18
Standard Indenture
Provisions.................. 12
Stock Index................... 3
Stock Index Call Warrants..... 2
Stock Index Put Warrants...... 2
Stock Index Warrant Agent..... 21
Stock Index Warrant
Agreement................... 23
Stock Index Warrantholder..... 23
Stock Index Warrants.......... 1
Stock Warrants................ 15
Stock Warrant Agent........... 15
Stock Warrant Agreement....... 15
Stock Warrant Certificates.... 15
Stock Warrant Provisions...... 15
Strike Index.................. 23
Strike Rate................... 18
Subordinated Debt
Securities.................. 12
Subordinated Indebtedness..... 14
Subordinated Indenture........ 12
Third Party Securities........ 13
Third Party Warrant Agent..... 16
Third Party Warrant
Agreement................... 16
Third Party Warrant
Certificate................. 16
Third Party Warrants.......... 1
Underlying Stocks............. 1
U.S. dollar, dollar, U.S. $,
$........................... 4
Valuation Date................ 18
Voting Stock.................. 7
</TABLE>
32
<PAGE> 34
------------------------------------------------------
------------------------------------------------------
No dealer, sales representative, or any other person has been authorized to
give any information or to make any representations in connection with this
offering other than those contained in this Prospectus or any Prospectus
Supplement and, if given or made, such information or representation must not be
relied upon as having been authorized by Intel or Intel Overseas or by any
agent. This Prospectus does not constitute an offer to sell, or a solicitation
of an offer to purchase, any securities other than the securities to which it
relates or an offer to or a solicitation of any person in any jurisdiction where
such an offer or solicitation would be unlawful. Neither the delivery of this
Prospectus, any Prospectus Supplement nor any sale made hereunder or thereunder
shall, under any circumstances, create any implication that there has been no
change in the affairs of Intel or Intel Overseas or that the information
contained herein or therein is correct as of any time subsequent to the date
hereof or thereof.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Available Information................. 4
Incorporation of Certain Documents by
Reference........................... 4
Intel................................. 5
Intel Overseas........................ 5
Use of Proceeds....................... 5
General Description of Securities..... 6
Description of the Common Stock....... 6
Description of the Preferred Stock.... 7
Description of the Depositary
Shares.............................. 8
Description of the Debt Securities.... 11
Description of the Warrants to
Purchase Common or Preferred
Stock............................... 15
Description of the Third Party
Warrants............................ 16
Description of the Warrants to
Purchase Debt Securities............ 17
Description of the Foreign Currency
Exchange Warrants................... 18
Description of the Stock Index
Warrants............................ 23
Description of the Other Warrants..... 26
Plan of Distribution.................. 29
ERISA Considerations.................. 30
Legal Matters......................... 31
Experts............................... 31
Index of Terms........................ 32
- ---------------------------------------------
- ---------------------------------------------
</TABLE>
------------------------------------------------------
------------------------------------------------------
INTEL CORPORATION
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
DEBT SECURITIES
WARRANTS TO PURCHASE COMMON STOCK
WARRANTS TO PURCHASE PREFERRED STOCK
THIRD PARTY WARRANTS
WARRANTS TO PURCHASE DEBT SECURITIES
FOREIGN CURRENCY EXCHANGE WARRANTS
STOCK INDEX WARRANTS
OTHER WARRANTS
GUARANTEES OF DEBT SECURITIES OF
INTEL OVERSEAS CORPORATION
INTEL OVERSEAS CORPORATION
DEBT SECURITIES
October , 1994
------------------------------------------------------
------------------------------------------------------
<PAGE> 35
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below are the approximate amounts of the fees and expenses
payable by Intel in connection with the offering described in the Registration
Statement; all amounts are estimated except for the SEC registration fee:
<TABLE>
<S> <C>
SEC registration fee................................................ $ 345
Printing and engraving expenses..................................... $ 50,000
Trustees' and Warrant Agents' fees and expenses..................... $100,000
Rating agency fees.................................................. $100,000
Accounting fees and expenses........................................ $ 20,000
Legal fees and expenses............................................. $ 50,000
Blue sky fees and expenses (including legal fees)................... $ 10,000
Transfer agent's and registrar's fees and expenses.................. $ 25,000
Miscellaneous....................................................... $ 40,000
--------
Total..................................................... $395,345
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Section 145 of Delaware Law permits Intel to indemnify any person against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
any threatened, pending or completed action, suit or proceeding in which such
person is made a party by reason of his being or having been a director,
officer, employee or agent of Intel, in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933.
The statute provides that indemnification pursuant to its provisions is not
exclusive of other rights of indemnification to which a person may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
Article 10 of Intel's Certificate of Incorporation and Article IX of
Intel's Bylaws provide for indemnification of its directors, officers, employees
and other agents to the maximum extent permitted by law. Intel also provides
indemnify insurance pursuant to which directors and officers are indemnified or
insured against liability or loss under certain circumstances which may include
liability, or related loss under the Securities Act of 1933 and the Securities
Exchange Act of 1934.
Under the terms of the Form of Intel Corporation Underwriting Agreement,
U.S. Underwriting Agreement and International Underwriting Agreement filed as
exhibits hereto, directors, certain officers and controlling persons of Intel or
Intel Overseas are entitled to indemnification under certain circumstances
including proceedings under the Securities Act of 1933 and the Securities
Exchange Act of 1934.
Item 16. Exhibits.
<TABLE>
<S> <C>
1.1 Form of Intel Corporation Underwriting Agreement (filed as Exhibit 1.1 to Intel's
Registration Statement on Form S-3 (No. 33-58964) filed on March 2, 1993, and
incorporated herein).
4.1 Restated Certificate of Incorporation of Intel (filed as Exhibit 3.1 to Intel's
Form 10-Q for the quarter ended March 27, 1993 as filed on May 11, 1993, and
incorporated herein).
4.2 Form of Intel Corporation Standard Indenture provisions.
</TABLE>
II-1
<PAGE> 36
<TABLE>
<S> <C>
4.3 Form of Warrant Agreement, including form of Warrant relating to the Stock Index
Warrants, as amended (filed as Exhibit 4.1 to Intel's Registration Statement on
Form S-3 (No. 33-20117) filed on November 4, 1992, and incorporated herein.)
4.4 Form of Intel Overseas Corporation Standard Indenture Provisions.
4.5 Amended and Restated Bylaws of Intel, as amended through January 31, 1993 (filed
as Exhibit 4.5 to Intel's Registration Statement on Form S-3 (No. 33-58964) filed
on March 2, 1993, and incorporated herein).
4.6 Form of Standard Stock Warrant Provisions (filed as Exhibit 4.6 to Intel's
Registration Statement on Form S-3 (No. 33-58964) filed on March 2, 1993, and
incorporated herein).
4.7 Form of Standard Debt Securities Warrant Provisions, dated March 1, 1993 (filed as
Exhibit 4.7 to Intel's Registration Statement on Form S-3 (No. 33-58964) filed on
March 2, 1993, and incorporated herein).
4.8 Form of Deposit Agreement (filed as Exhibit 4.8 to Intel's Registration Statement
on Form S-3 (No. 33-58964) filed on March 2, 1993, and incorporated herein).
4.9 Form of Warrant Agreement, including form of Warrant, relating to the Foreign
Currency Exchange Warrants, as amended, (filed as Exhibit 4.12 to Intel's
Registration Statement on Form S-3 (No. 33-58964) filed on March 2, 1993, and
incorporated herein)
5.1 Opinion of Pillsbury Madison & Sutro.
12.1 Statement re Computation of Ratios (filed as Exhibit 12.1 to Intel's Form 10-K for
the year ended December 25, 1993, and incorporated herein).
24.1 Consent of Ernst & Young LLP, independent auditors.
24.2 Consent of Pillsbury Madison & Sutro (included in its opinion filed as Exhibit 5.1
hereto).
25.1 Powers of Attorney (Intel) (set forth on page II-4).
25.2 Powers of Attorney (Intel Overseas) (set forth on page II-6).
</TABLE>
Item 17. Undertakings.
Each of Intel and Intel Overseas (the "Registrants") hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1993;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs contained in periodic reports filed by Intel pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-2
<PAGE> 37
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
Each of the Registrants hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of Intel's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the provisions described in Item 15 or otherwise, the
Registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. If a claim for
indemnification against such liabilities (other than the payment by a Registrant
of expenses incurred or paid by a director, officer or controlling person of a
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant, will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
Each of the Registrants hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under Subsection
(a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act of 1939.
The Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of Prospectus filed by a Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
Prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) The Registrants will provide to the underwriters at the closing
specified in the underwriting agreement certificates in such denominations
and registered in such names as required by the underwriters to permit
prompt delivery to each purchaser.
II-3
<PAGE> 38
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Clara, State of California, on the 6th day
of October, 1994.
INTEL CORPORATION
By /s/ ANDY D. BRYANT
(Andy D. Bryant,
Vice President, Principal
Accounting and
Chief Financial Officer)
POWER OF ATTORNEY
Each of the undersigned hereby appoints Andy D. Bryant, Arvind Sodhani, F.
Thomas Dunlap and Scott T. Smith, and each of them (with full power in each to
act alone), as attorneys and agents for the undersigned, with full power of
substitution, for and in the name, place, and stead of the undersigned, to sign
and file with the Securities and Exchange Commission under the Securities Act of
1933 any and all amendments and exhibits to this Registration Statement and any
and all applications, instruments, and other documents to be filed with the
Securities and Exchange Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons and in the
capacities indicated on the 6th day of October, 1994.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<S> <C>
/s/ GORDON E. MOORE Chairman of the Board of Directors
- ---------------------------------------------
(Gordon E. Moore)
/s/ ANDREW S. GROVE President, Chief Executive Officer and
- --------------------------------------------- Director (Principal Executive Officer)
(Andrew S. Grove)
/s/ CRAIG R. BARRETT Director
- ---------------------------------------------
(Craig R. Barrett)
/s/ WINSTON H. CHEN Director
- ---------------------------------------------
(Winston H. Chen)
/s/ D. JAMES GUZY Director
- ---------------------------------------------
(D. James Guzy)
/s/ MAX PALEVSKY Director
- ---------------------------------------------
(Max Palevsky)
/s/ ARTHUR ROCK Director
- ---------------------------------------------
(Arthur Rock)
/s/ JANE E. SHAW Director
- ---------------------------------------------
(Jane E. Shaw)
/s/ LESLIE L. VADASZ Director
- ---------------------------------------------
(Leslie L. Vadasz)
/s/ DAVID B. YOFFIE Director
- ---------------------------------------------
(David B. Yoffie)
/s/ CHARLES E. YOUNG Director
- ---------------------------------------------
(Charles E. Young)
/s/ ANDY D. BRYANT Vice President, Principal Accounting and
- --------------------------------------------- Chief Financial Officer (Principal
(Andy D. Bryant) Financial and Accounting Officer)
</TABLE>
II-4
<PAGE> 39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Intel Overseas
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Santa Clara, State of California, on the day of
October 6, 1994.
INTEL OVERSEAS CORPORATION
By /s/ ROBERT H. PERLMAN
-----------------------------------
(Robert H. Perlman, President)
POWER OF ATTORNEY
Each of the undersigned hereby appoints Andy D. Bryant, Arvind Sodhani, F.
Thomas Dunlap and Scott T. Smith, and each of them (with full power in each to
act alone), as attorneys and agents for the undersigned, with full power of
substitution, for and in the name, place, and stead of the undersigned, to sign
and file with the Securities and Exchange Commission under the Securities Act of
1933 any and all amendments and exhibits to this Registration Statement and any
and all applications, instruments, and other documents to be filed with the
Securities and Exchange Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons and in the
capacities indicated on the 6th day of October, 1994.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<S> <C>
/s/ ROBERT H. PERLMAN President and Director (Principal
- --------------------------------------------- Executive Oficer)
(Robert H. Perlman)
/s/ ARVIND SODHANI Treasurer and Director (Principal
- --------------------------------------------- Financial Officer and Principal
(Arvind Sodhani) Accounting Officer)
/s/ THOMAS R. LAVELLE Director
- ---------------------------------------------
(Thomas R. Lavelle)
</TABLE>
II-5
<PAGE> 40
EXHIBIT INDEX
<TABLE>
<S> <C>
Exhibit Description
--------- -----------
1.1 Form of Intel Corporation Underwriting Agreement (filed as Exhibit 1.1 to Intel's
Registration Statement on Form S-3 (No. 33-58964) filed on March 2, 1993, and
incorporated herein).
4.1 Restated Certificate of Incorporation of Intel (filed as Exhibit 3.1 to Intel's
Form 10-Q for the quarter ended March 27, 1993 as filed on May 11, 1993, and
incorporated herein).
4.2 Form of Intel Corporation Standard Indenture provisions.
4.3 Form of Warrant Agreement, including form of Warrant relating to the Stock Index
Warrants, as amended (filed as Exhibit 4.1 to Intel's Registration Statement on
Form S-3 (No. 33-20117) filed on November 4, 1992, and incorporated herein.)
4.4 Form of Intel Overseas Corporation Standard Indenture Provisions.
4.5 Amended and Restated Bylaws of Intel, as amended through January 31, 1993 (filed
as Exhibit 4.5 to Intel's Registration Statement on Form S-3 (No. 33-58964) filed
on March 2, 1993, and incorporated herein).
4.6 Form of Standard Stock Warrant Provisions (filed as Exhibit 4.6 to Intel's
Registration Statement on Form S-3 (No. 33-58964) filed on March 2, 1993, and
incorporated herein).
4.7 Form of Standard Debt Securities Warrant Provisions, dated March 1, 1993 (filed as
Exhibit 4.7 to Intel's Registration Statement on Form S-3 (No. 33-58964) filed on
March 2, 1993, and incorporated herein).
4.8 Form of Deposit Agreement (filed as Exhibit 4.8 to Intel's Registration Statement
on Form S-3 (No. 33-58964) filed on March 2, 1993, and incorporated herein).
4.9 Form of Warrant Agreement, including form of Warrant, relating to the Foreign
Currency Exchange Warrants, as amended, (filed as Exhibit 4.12 to Intel's
Registration Statement on Form S-3 (No. 33-58964) filed on March 2, 1993, and
incorporated herein)
5.1 Opinion of Pillsbury Madison & Sutro.
12.1 Statement re Computation of Ratios (filed as Exhibit 12.1 to Intel's Form 10-K for
the year ended December 25, 1993, and incorporated herein).
24.1 Consent of Ernst & Young LLP, independent auditors.
24.2 Consent of Pillsbury Madison & Sutro (included in its opinion filed as Exhibit 5.1
hereto).
25.1 Powers of Attorney (Intel) (set forth on page II-4).
25.2 Powers of Attorney (Intel Overseas) (set forth on page II-6).
</TABLE>
<PAGE> 1
EXHIBIT 4.2
INTEL CORPORATION
STANDARD INDENTURE PROVISIONS
Dated as of October 20, 1994
<PAGE> 2
TABLE SHOWING REFLECTION IN THESE STANDARD
INDENTURE PROVISIONS OF CERTAIN PROVISIONS OF
THE TRUST INDENTURE ACT OF 1939(1)
<TABLE>
<CAPTION>
Provisions of Trust
Indenture Act of 1939 Indenture Provision
- --------------------- -------------------
<S> <C>
310(a)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.8
310(a)(3) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.7; 9.9(a)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.12(a)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.12(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1; 7.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(a)
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(d)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
315(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(a)(1)
315(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(a)(2)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.9
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(b)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(c)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.7
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1; 8.6
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1
317(a)(1) and (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(6), (7)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.8
</TABLE>
____________________
(1) This table is not part of the Standard Indenture Provisions.
<PAGE> 3
INTEL CORPORATION
STANDARD INDENTURE PROVISIONS
TABLE OF CONTENTS(2)
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Certain Definitions . . . . . . . . . . . . . . . . 1
ARTICLE 2 SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.1 Forms Generally . . . . . . . . . . . . . . . . . . 6
Section 2.2 Form of Trustee's Certificate of Authentication . . 6
Section 2.3 Form of Trustee's Certificate of Authentication by
an Authenticating Agent . . . . . . . . . . . . . 7
Section 2.4 Securities Issuable in the Form of a
Global Security . . . . . . . . . . . . . . . . . 7
ARTICLE 3 THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.1 Amount Unlimited; Issuable in Series . . . . . . . 10
Section 3.2 Form and Denominations . . . . . . . . . . . . . . 12
Section 3.3 Authentication and Dating . . . . . . . . . . . . . 12
Section 3.4 Execution of Securities and Coupons . . . . . . . . 13
Section 3.5 Registration; Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . 14
Section 3.6 Mutilated, Destroyed, Lost or Stolen Securities
or Coupons . . . . . . . . . . . . . . . . . . . 16
Section 3.7 Temporary Securities . . . . . . . . . . . . . . . 17
Section 3.8 Payment of Interest; Interest Rights Preserved . . 18
Section 3.9 Cancellation . . . . . . . . . . . . . . . . . . . 19
Section 3.10 Computation of Interest . . . . . . . . . . . . . . 19
Section 3.11 Currency and Manner of Payments in
Respect of Securities . . . . . . . . . . . . . . 19
Section 3.12 Compliance with Certain Laws and Regulations . . . 24
ARTICLE 4 REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . 25
Section 4.1 Applicability of Article . . . . . . . . . . . . . 25
Section 4.2 Notice of Redemption; Selection of Securities . . . 25
Section 4.3 Payment of Securities Called for Redemption . . . . 27
ARTICLE 5 SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . 28
</TABLE>
____________________
(2) This Table of Contents does not constitute part of the
Standard Indenture Provisions or have any bearing upon the
interpretation of any of its terms and provisions.
-i-
<PAGE> 4
<TABLE>
<S> <C>
Section 5.1 Applicability of Article . . . . . . . . . . . . . 28
Section 5.2 Satisfaction of Mandatory Sinking Fund
Payments with Securities . . . . . . . . . . . . 28
Section 5.3 Redemption of Securities for Sinking Fund . . . . . 28
ARTICLE 6 CERTAIN COVENANTS OF THE COMPANY . . . . . . . . . . . . . 31
Section 6.1 Payment of Securities . . . . . . . . . . . . . . . 31
Section 6.2 Other Covenants . . . . . . . . . . . . . . . . . . 31
Section 6.3 Waiver . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE 35
Section 7.1 Semiannual Lists of Holders . . . . . . . . . . . . 35
Section 7.2 Preservation of Information . . . . . . . . . . . . 35
Section 7.3 Periodic Reports by Company . . . . . . . . . . . . 37
Section 7.4 Trustee's Reports to Holders . . . . . . . . . . . 38
Section 7.5 Compliance Certificates and Opinions . . . . . . . 40
ARTICLE 8 REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT . 41
Section 8.1 Events of Default . . . . . . . . . . . . . . . . . 41
Section 8.2 Collection of Indebtedness by Trustee . . . . . . . 44
Section 8.3 Application of Moneys Collected by Trustee . . . . 46
Section 8.4 Limitation on Suits on Indenture; No Limitation on
Suits on Securities . . . . . . . . . . . . . . . 47
Section 8.5 Remedies Cumulative; Delay Not To Impair Rights . . 48
Section 8.6 Directions by Holders of Securities . . . . . . . . 49
Section 8.7 Undertakings for Costs . . . . . . . . . . . . . . 49
Section 8.8 Judgment Currency . . . . . . . . . . . . . . . . . 49
Section 8.9 Notice of Default . . . . . . . . . . . . . . . . . 50
ARTICLE 9 CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . 51
Section 9.1 Certain Duties and Responsibilities . . . . . . . . 51
Section 9.2 Certain Rights of Trustee . . . . . . . . . . . . . 52
Section 9.3 Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . 53
Section 9.4 May Hold Securities . . . . . . . . . . . . . . . . 53
Section 9.5 Money Held in Trust . . . . . . . . . . . . . . . . 53
Section 9.6 Compensation and Reimbursement . . . . . . . . . . 54
Section 9.7 Disqualification; Conflicting Interests . . . . . . 54
Section 9.8 Corporate Trustee Required; Eligibility . . . . . . 55
Section 9.9 Resignation and Removal; Appointment of Successor . 56
Section 9.10 Acceptance of Appointment by Successor . . . . . . 57
Section 9.11 Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . 58
Section 9.12 Preferential Collection of Claims Against Company . 58
Section 9.13 Appointment of Authenticating Agent . . . . . . . . 63
ARTICLE 10 CONCERNING THE HOLDERS OF SECURITIES . . . . . . . . . . . 65
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<S> <C>
Section 10.1 Action by Holders . . . . . . . . . . . . . . . . . 65
Section 10.2 Proof of Execution of Instruments by Holders of
Securities . . . . . . . . . . . . . . . . . . . 65
Section 10.3 Persons Deemed Owners . . . . . . . . . . . . . . . 66
Section 10.4 Revocation of Consents; Future Holders Bound . . . 66
ARTICLE 11 HOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . 67
Section 11.1 Purposes of Meetings . . . . . . . . . . . . . . . 67
Section 11.2 Call of Meetings by Trustee . . . . . . . . . . . . 67
Section 11.3 Call of Meetings by Company or Holders . . . . . . 67
Section 11.4 Qualifications for Voting . . . . . . . . . . . . . 68
Section 11.5 Regulations . . . . . . . . . . . . . . . . . . . . 68
Section 11.6 Voting . . . . . . . . . . . . . . . . . . . . . . 69
Section 11.7 No Delay of Rights by Meeting . . . . . . . . . . . 69
ARTICLE 12 SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . 70
Section 12.1 Supplemental Indentures . . . . . . . . . . . . . . 70
Section 12.2 Notice of Supplemental Indenture . . . . . . . . . 72
Section 12.3 Effect of Supplemental Indenture . . . . . . . . . 72
Section 12.4 Notation on Securities and Coupons . . . . . . . . 73
Section 12.5 Issuance of Securities by Successor Corporation . . 73
ARTICLE 13 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS 74
Section 13.1 Satisfaction and Discharge . . . . . . . . . . . . 74
Section 13.2 Application of Moneys . . . . . . . . . . . . . . . 75
Section 13.3 Repayment of Moneys by Paying Agents . . . . . . . 75
Section 13.4 Unclaimed Moneys . . . . . . . . . . . . . . . . . 75
ARTICLE 14 MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . 76
Section 14.1 Limitation of Individual Liability . . . . . . . . 76
Section 14.2 Successors . . . . . . . . . . . . . . . . . . . . 76
Section 14.3 Notice to Holders; Waiver . . . . . . . . . . . . . 76
Section 14.4 Addresses for Notices . . . . . . . . . . . . . . . 77
Section 14.5 Cross References . . . . . . . . . . . . . . . . . 78
Section 14.6 Counterparts . . . . . . . . . . . . . . . . . . . 78
Section 14.7 Headings Not To Affect Construction . . . . . . . . 78
Section 14.8 Trust Indenture Act To Govern . . . . . . . . . . . 78
Section 14.9 Legal Holidays . . . . . . . . . . . . . . . . . . 78
Section 14.10 Governing Law . . . . . . . . . . . . . . . . . . . 78
ARTICLE 15 SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . 79
Section 15.1 Subordination . . . . . . . . . . . . . . . . . . . 79
Section 15.2 Acceleration of Securities . . . . . . . . . . . . 79
Section 15.3 Default on Senior Indebtedness . . . . . . . . . . 79
Section 15.4 Insolvency, etc. . . . . . . . . . . . . . . . . . 80
Section 15.5 Payments and Distributions Received . . . . . . . . 82
Section 15.6 Excess Senior Indebtedness Payment, Subrogation,
etc. . . . . . . . . . . . . . . . . . . . . . . 82
Section 15.7 No Security . . . . . . . . . . . . . . . . . . . . 82
Section 15.8 Obligations Not Impaired . . . . . . . . . . . . . 83
Section 15.9 Subordination Not Affected, etc. . . . . . . . . . 83
</TABLE>
-iii-
<PAGE> 6
<TABLE>
<S> <C> <C>
Section 15.10 Changes, Waivers, etc. . . . . . . . . . . . . . . 84
Section 15.11 Payment in Full of Senior Indebtedness . . . . . . 84
Section 15.12 Trustee Entitled To Assume Payments Not Prohibited
in Absence of Notice . . . . . . . . . . . . . . 84
Section 15.13 Application by Trustee of Moneys Deposited With It 84
Section 15.14 Securityholders Authorize Trustee To Effectuate
Subordination of Securities . . . . . . . . . . . 84
Section 15.15 Right of Trustee To Hold Senior
Indebtedness . . . . . . . . . . . . . . . . . . 85
Section 15.16 Article 15 Not To Prevent Events of Default . . . . 85
</TABLE>
-iv-
<PAGE> 7
ARTICLE 1
DEFINITIONS
Section 1.1 Certain Definitions. Except as otherwise expressly
provided or unless the context otherwise requires, the following items
shall have the meanings specified in this Section 1.1. These definitions
shall be applicable to both the singular and the plural form of the terms
defined. Except as otherwise expressly provided or unless the context
otherwise requires, terms used in this Indenture that are defined in the
Trust Indenture Act, or that are by reference in such Act defined in the
Securities Act of 1933, as amended, have the meanings specified in the
Trust Indenture Act and in the Securities Act of 1933 as in force at the
date of the execution of this Indenture.
"Authenticating Agent" shall mean any authenticating agent appointed
by the Trustee pursuant to Section 9.13.
"Authorized Newspaper" shall mean a newspaper in an official language
of the country of publication customarily published at least once a day,
and customarily published for at least five days in each calendar week, and
of general circulation in such city or cities as may be provided elsewhere
in this Indenture or specified as contemplated by Section 3.1 with respect
to the Securities of any series the terms of which permit Unregistered
Securities or Coupon Securities. Where successive publications are
required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting
the foregoing requirements and in each case on any Business Day in such
city.
"Board of Directors" shall mean either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day," when used in connection with the name of a city, shall
mean any day other than a day on which banking institutions in such city
are authorized or required by law to close, and shall otherwise mean each
day of the week that is not a day on which banking institutions at the
place where any specified act pursuant to this Indenture is to occur are
authorized or required by law to close.
"Commission" shall mean the Securities and Exchange Commission.
-1-
<PAGE> 8
"Company" shall mean Intel Corporation, a Delaware corporation, until
a corporation shall have become a successor pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean the
successor corporation.
"Company Order" and "Company Request" shall mean a written order or
written request signed in the name of the Company by its Chairman or a Vice
Chairman of the Board of Directors, or President or a Vice President, and
by its Treasurer, Assistant Treasurer, Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office" shall mean the principal office of the
Trustee at which at any particular time its corporate trust business shall
be administered, except that with respect to presentation of Registered
Securities for payment or for registration of transfer and exchange,
presentation of Unregistered Securities for registration and the location
of the Securities Register, "Corporate Trust Office" shall mean the office
or agency of the Trustee at which at any particular time its corporate
agency business shall be conducted.
"Coupon" shall mean any interest coupon appertaining to any Security.
"Coupon Security" shall mean any Security authenticated and delivered
with one or more Coupons appertaining thereto.
"Depositary" shall mean the entity, if any, named as the "Depositary"
pursuant to Section 3.1 and, subject to the provisions of this Indenture,
shall also include its successors and assigns.
"Dollar" shall mean the coin or currency of the United States of
America that is legal tender for the payment of public and private debts at
the time of payment.
"Event of Default": See Section 8.1.
"Exchange Rate Officer's Certificate" shall mean a telex or a
certificate setting forth (i) the applicable Official Currency Unit
Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal,
if any, and interest, if any (on an aggregate basis and on the basis of a
Security having a principal amount of 1,000 in the relevant currency unit),
payable on the basis of such Official Currency Unit Exchange Rate, sent (in
the case of a telex) or signed (in the case of a certificate) by the
Treasurer or any Assistant Treasurer of the Company.
"Foreign Currency" shall mean a currency issued by the government of
any country other than the United States.
"Fully Registered Security" shall mean any Security registered as to
principal and interest, if any.
-2-
<PAGE> 9
"Global Security" shall mean a Security issued to evidence all or a
part of any series of Securities that is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to
the Depositary's instructions, all in accordance with this Indenture and
pursuant to a Company Order, which shall be registered as to principal and
interest in the name of the Depositary or its nominee.
"Holder" shall mean, with respect to a Registered Security, the Person
in whose name a particular Registered Security is registered in the
Securities Register; and with respect to an Unregistered Security or a
Coupon, the bearer thereof.
"Indenture" shall mean this instrument as originally executed, or as
it may be amended or supplemented from time to time as herein provided, and
shall include the form and terms of particular series of Securities
established as contemplated hereunder.
The term "interest" when used with respect to noninterest-bearing
Securities, means interest payable after maturity.
"Interest Payment Date" shall mean the Stated Maturity of an
installment of interest on the Securities of any series.
"Officers' Certificate" shall mean a certificate signed by the
Chairman or a Vice Chairman of the Board of Directors, or the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company.
"Original Issue Discount Security" shall mean any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 8.1.
"Outstanding," when used with reference to Securities, shall mean, as
of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount and in the
required currency or currency unit shall have been deposited in
trust with the Trustee or
with any Paying Agent (other than the Company or any other
obligor on the Securities) or shall have been
-3-
<PAGE> 10
set aside and segregated in trust by the Company or any other obligor
on the Securities (if the Company or any other obligor on the
Securities shall act as its own Paying Agent) for the Holders of such
Securities and any Coupons appertaining thereto, provided that if such
Securities are to be redeemed prior to the Stated Maturity thereof,
notice of such redemption shall have been given as provided in
Article 4, or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Securities in lieu of and in substitution for which
other Securities shall have been authenticated and delivered
pursuant to Section 3.5, other than any such Securities in
respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities
owned by the Company or any other obligor on the Securities or any other
Person directly or indirectly controlling, controlled by, or under direct
or indirect common control with the Company or such other obligor (an
"Affiliate") shall be disregarded and deemed not to be Outstanding. In
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor on the Securities or any
Affiliate of the Company or such other obligor. In determining whether the
Holders of the requisite principal amount of Outstanding Securities have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to Section 8.1.
"Overdue Rate" with respect to any series of Securities shall mean the
rate so designated relating to such series as contemplated by Section 3.1.
"Paying Agent" shall mean any person authorized by the Company to pay
the principal of, or premium or interest on, any Securities on behalf of
the Company.
-4-
<PAGE> 11
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, shall mean the place or places where the principal of, and premium
and interest, if any, on, the Securities of such series are payable as
specified pursuant to Section 3.1.
"Redemption Date," when used with respect to any Security to be
redeemed, shall mean the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, shall mean the price, in the currency or currency unit in which
such Security is denominated or which is otherwise provided for pursuant to
this Indenture, at which it is to be redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security registered as to
principal.
"Responsible Officer," when used with respect to the Trustee, shall
mean the chairman of the board of directors, vice chairman of the board of
directors, the president, any vice president, the secretary, the treasurer,
any trust officer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons
who at the time shall be such officers or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security" or "Securities" shall mean all debentures, notes or other
evidences of indebtedness authenticated and delivered under this Indenture.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such
Security or the Coupon, if any, representing such installment of interest
as the date on which the principal of, or premium or interest on, if any,
such Security is due and payable.
"Trustee" shall mean the Person named as the "Trustee" in the first
paragraph of this Indenture and, subject to the provisions of Article 9,
shall also include its successors and assigns. If there shall be more than
one Trustee at any one time, "Trustee" shall mean each such Trustee and
shall apply to each such Trustee only for those series of Securities with
respect to which it is serving as Trustee.
-5-
<PAGE> 12
Except as provided in Section 12.1, "Trust Indenture Act" shall mean
the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform
Act of 1990, and as in force at the date of execution of this Indenture.
"Unregistered Security" means any Security that is not registered as
to principal.
"Yield to Maturity" means the yield to maturity, calculated at the
time of issuance of a series of Original Issue Discount Securities, or, if
applicable, at the most recent redetermination of interest on such series,
and calculated in accordance with accepted financial practice.
ARTICLE 2
SECURITY FORMS
Section 2.1 Forms Generally. The Securities of each series, and the
Coupons, if any, to be attached thereto, shall be in substantially the form
or forms established pursuant to Section 3.1, in each case with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture. The Securities and Coupons
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with
any law or with any rules made pursuant thereto or with any rules of any
securities exchange or as may be determined by the officers executing such
Securities and Coupons, as evidenced by their execution of the Securities
and Coupons.
The definitive Securities and Coupons, if any, of each series shall be
printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing
such Securities and Coupons, as evidenced by their execution of such
Securities and Coupons, subject, with respect to the Securities of any
series, to the rules of any securities exchange on which the Securities of
such series are listed.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's Certificate of Authentication on all Securities shall be in
substantially the following form:
-6-
<PAGE> 13
This is one of the Securities of the series designated herein provided
for under the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By _________________________________
Authorized Officer
Section 2.3 Form of Trustee's Certificate of Authentication by an
Authenticating Agent. If at any time there shall be an Authenticating
Agent appointed with respect to any series of Securities, then the
Trustee's Certificate of Authentication by such Authenticating Agent on all
Securities of each such series shall be in substantially the following
form:
This is one of the Securities of the series designated herein provided
for under the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By [NAME OF AUTHENTICATING AGENT],
Authenticating Agent
By ____________________________
Authorized Officer
Section 2.4 Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section 3.1 that the
Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute
and the Trustee shall, in accordance with Section 3.3 and the Company Order
delivered to the Trustee thereunder, authenticate and deliver, such Global
Security or Securities, which:
(i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the Outstanding
Securities of such series to be represented by such Global
Security or Securities;
(ii) shall be registered in the name of the Depositary for
such Global Security or Securities or its nominee;
-7-
<PAGE> 14
(iii) shall be delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction; and
(iv) shall bear a legend substantially to the following
effect:
"Unless and until it is exchanged in whole or in part
for the individual Securities represented hereby, this
Global Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary
or any such nominee to a successor Depositary or a
nominee of such successor Depositary."
Without limiting the foregoing, the Company and the Trustee shall have
no responsibility, obligation or liability with respect to: (x) the
maintenance, review or accuracy of the records of the Depositary or any of
its participating organizations with respect to the ownership interest in
or payments with respect to such Global Security, (y) any communication
with or delivery of any notice (including notices of redemption) with
respect to the series of Securities represented by the Global Security to
any Person having any ownership interest in such Global Security or to any
of the Depositary's participating organizations or (z) any payment made on
account of any beneficial ownership interest in such Global Security.
(b) Notwithstanding any other provision of this Section 2.4 or of
Section 3.5, unless the terms of a Global Security expressly permit such
Global Security to be exchanged in whole or in part for individual
Securities, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 3.5, only to the Depositary or
another nominee of the Depositary for such Global Security, or to a
successor Depositary for such Global Security selected or approved by the
Company or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or if at any time the Depositary for the Securities
for such series shall no longer be eligible or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, the Company shall appoint a successor Depositary with respect
to such Global Security. If a successor Depositary for such Global
Security is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to
-8-
<PAGE> 15
Section 3.1(17) shall no longer be effective with respect to such Global
Security and the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Securities
of such series in exchange for such Global Security, will authenticate and
deliver individual Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series issued or issuable in the form
of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will execute, and
the Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Securities of such series in exchange in whole or in
part for such Global Security, will authenticate and deliver individual
Securities of such series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
(iii) If specified by the Company pursuant to Section 3.1 with
respect to Securities issued or issuable in the form of a Global Security,
the Depositary for such Global Security may surrender such Global Security
in exchange in whole or in part for individual Securities of such series of
like tenor and terms in definitive form on such terms as are acceptable to
the Company and such Depositary. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service charge, (1) to
each Person specified by such Depositary a new Security or Securities of
the same series of like tenor and terms and of any authorized denominations
as requested by such Person or the Depositary in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Global Security; and (2) to such Depositary a new Global Security of like
tenor and terms and in a denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute, and the Trustee will authenticate and
deliver, individual Registered Securities in authorized denominations.
Upon the exchange of a Global Security for individual Securities, such
Global Security shall be canceled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section 2.4 shall be
registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise,
-9-
<PAGE> 16
shall instruct the Trustee. The Trustee shall deliver such Securities to
the persons in whose names such Securities are so registered.
ARTICLE 3
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered
under this Indenture is unlimited. The Securities may be issued in one or
more series. There shall be established in or pursuant to the authority
granted in a resolution of the Board of Directors or established in one or
more indentures supplemented hereto, prior to the issuance of any
Securities of any series:
(1) the title of the Securities of such series (which shall
distinguish the Securities of such series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of such series
pursuant to Sections 2.4, 3.5, 3.6, 3.7, 4.3 or 12.4);
(3) the date or dates on which such Securities may be
issued;
(4) the date or dates, which may be serial, on which the
principal and premium, if any, of the Securities of such series
is payable;
(5) the rate or rates, or the method of determination
thereof, at which the Securities of such series shall bear
interest, if any; the date or dates from which such interest
shall accrue; the Interest Payment Dates on which such interest
shall be payable and, in the case of Registered Securities, the
record dates, if other than as set forth in Section 3.8, for the
determination of Holders to whom interest is payable; and whether
any special terms and conditions relating to the payment of
additional amounts in respect of payments on the Securities of
such series shall in the event of certain changes in the United
States federal income tax laws, apply to Unregistered Securities
of such series or to Registered Securities of such series;
(6) the Place of Payment of such series;
-10-
<PAGE> 17
(7) the provisions, if any, establishing the price or
prices at which, the period or periods within which and the terms
and conditions upon which Securities of such series may be
redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise, and whether any
special terms and conditions of redemption shall apply to
Unregistered Securities of such series or to Registered
Securities of such series;
(8) the obligation, if any, of the Company to redeem,
purchase or repay Securities of such series pursuant to any
sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices, in the currency or currency unit
in which the Securities of such series are payable, at which and
the period or periods within which and the terms and conditions
upon which Securities of such series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of 1,000 and any integral
multiple thereof, in the currency or currency unit in which the
Securities of such series are denominated, the denominations in
which Securities of such series shall be issuable;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of such series which shall
be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 8.1 or provable in bankruptcy
pursuant to Section 8.2;
(11) whether payment of the principal of, premium, if any,
and interest, if any, on the Securities of such series shall be
with or without deduction for taxes, assessments or governmental
charges, and with or without reimbursement of taxes, assessments
or governmental charges paid by Holders;
(12) any Events of Default with respect to the Securities of
such series, if not set forth herein;
(13) if other than the rate of interest stated in the title
of the Securities of such series, the applicable Overdue Rate;
(14) if the Securities of such series do not bear interest,
the applicable dates for the purpose of clause (i) of
Section 7.1;
(15) whether the Securities of such series are to be issued
as Registered Securities (with or without
-11-
<PAGE> 18
Coupons) or Unregistered Securities or both, and, if Unregistered
Securities or Coupon Securities are issued, whether Unregistered
Securities or Coupon Securities of such series may be exchanged for
Registered Securities or Fully Registered Securities of such series
and whether Registered Securities or Fully Registered Securities of
such series may be exchanged for Unregistered Securities of such
series and the circumstances under which and the place or places where
any such exchanges, if permitted, may be made;
(16) the currency or currencies, or currency unit or
currency units (or with reference to any index or indices with
respect to a currency or currency unit), whether Dollars or
otherwise, in which the Securities of such series or any interest
or other amounts payable with respect thereto, including Coupons,
are to be denominated, payable, redeemable or repurchasable, as
the case may be;
(17) whether the Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities;
the terms and conditions, if any, upon which such Global Security
or Securities may be exchanged in whole or in part for other
individual Securities, and the Depositary for such Global
Security or Securities;
(18) the terms and conditions, if any, upon which any
Securities of such series may or shall be converted into other
securities or property; and
(19) any other terms of such series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the authority granted in such resolution of the Board of
Directors or in any such indenture supplemental thereto.
Section 3.2 Form and Denominations. In the absence of any
specification pursuant to Section 3.1 with respect to the Securities of any
series, the Securities of such series shall be issuable as Fully Registered
Securities in denominations of 1,000 and any integral multiple thereof, and
shall be payable in Dollars.
Section 3.3 Authentication and Dating. At any time and from time to
time after the execution and delivery of this Indenture, the Company may
deliver Securities of any series, with appropriate Coupons, if any,
attached thereto, executed by
-12-
<PAGE> 19
the Company to the Trustee for authentication. Except as otherwise
provided in this Article 3, the Trustee shall thereupon authenticate and
deliver, or cause to be authenticated and delivered, such Securities to or
upon Company Order, without any further action by the Company. In
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, prior to the initial authentication
of such Securities, and (subject to Section 9.1) shall be fully protected
in relying upon:
(1) a Board Resolution relating thereto and, if applicable,
an appropriate record of any action taken pursuant to such Board
Resolution, in each case certified by the Secretary or an
Assistant Secretary of the Company;
(2) an executed supplemental indenture, if any, relating
thereto;
(3) an Officers' Certificate, which shall state that all
conditions precedent provided for in this Indenture relating to
the issuance of such Securities have been complied with; and
(4) an Opinion of Counsel.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security of any series shall be dated
the date of its authentication, except as otherwise provided pursuant to
Section 3.1 with respect to the Securities of such series.
Section 3.4 Execution of Securities and Coupons. The Securities and
the Coupons, if any, appertaining thereto shall be signed in the name or on
behalf of the Company by the manual or facsimile signatures of the Chairman
of the Board of Directors, any Vice Chairman, the President or any Vice
President and additionally, in the case of each Security, under its
corporate seal (which may be printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise) and attested to by the Secretary or any
Assistant Secretary, the signatures of whom may be manual or facsimile. No
Security or Coupon appertaining thereto shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in
the form recited above, executed by or on behalf of the Trustee by manual
signature. Such certificate by or on behalf of the Trustee upon any
Security executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this
Indenture.
-13-
<PAGE> 20
If any officer of the Company who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before such
Securities or Coupons shall have been authenticated and delivered by or on
behalf of the Trustee, or disposed of by the Company, such Securities and
Coupons nevertheless may be authenticated, delivered or disposed of as
though the individual who signed such Securities or Coupons had not ceased
to be such officer of the Company. Furthermore, any Security or Coupon may
be signed on behalf of the Company by such individuals as, at the actual
date of the execution of such Security or Coupon, shall be the proper
officers of the Company, although at the date of the execution of this
Indenture any such individual was not such an officer.
The Trustee shall not authenticate or deliver any Coupon Security
until any matured Coupons appertaining thereto have been detached and
cancelled, except as otherwise provided or permitted by this Indenture.
Section 3.5 Registration; Registration of Transfer and Exchange.
Subject to the conditions set forth below or to Section 2.4, Securities of
any series may be exchanged for a like aggregate principal amount of
Securities of the same series and having the same terms of other authorized
denominations. Securities to be exchanged shall be surrendered together,
in the case of Coupon Securities, with all unmatured Coupons and matured
Coupons in default appertaining thereto, at the offices or agencies to be
maintained by the Company for such purposes as provided in Section 6.2(1),
and the Company shall execute or register and the Trustee or any
Authenticating Agent shall authenticate and deliver in exchange therefor
the Security or Securities which the Holder making the exchange shall be
entitled to receive.
The Company shall keep or cause to be kept, at one of such offices or
agencies, a register for each series of Securities issued hereunder which
may include Registered Securities (hereinafter collectively referred to as
the "Securities Register") in which, subject to reasonable regulations it
may prescribe, the Company shall provide for the registration of Registered
Securities of such series and shall register the transfer of Registered
Securities of such series as provided in this Article 3. The Securities
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. The Trustee and the
Authenticating Agent are hereby appointed "Securities Registrars" for the
purpose of registering Registered Securities and registering transfers of
Registered Securities as herein provided. Upon due presentment for
registration of transfer of any Security of any series at any such office
or agency, the Company shall execute and register and the Trustee or any
Authenticating Agent shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Securities of the
same series for an equal aggregate principal amount.
-14-
<PAGE> 21
At the option of the Holder thereof, Securities of any series, whether
Registered Securities or Unregistered Securities, which by their terms are
registrable as to principal only or as to principal and interest, may, to
the extent and under the circumstances specified pursuant to Section 3.1,
be exchanged for such Registered Securities with Coupons or Fully
Registered Securities of such series, as may be issued by the terms
thereof. Securities of any series, whether Registered Securities or
Unregistered Securities, which by their terms provide for the issuance of
Unregistered Securities, may not, except to the extent and under the
circumstances specified pursuant to Section 3.1, be exchanged for
Unregistered Securities of such series. Securities so issued in exchange
for other Securities shall be of like Stated Maturity. Unregistered
Securities of any series issued in exchange for Registered Securities of
such series between the record date for such Registered Securities and the
next Interest Payment Date will be issued without the Coupon relating to
such Interest Payment Date, and Unregistered Securities surrendered in
exchange for Registered Securities between such dates shall be surrendered
without the Coupon relating to such Interest Payment Date.
Upon presentation for registration of any Unregistered Security of any
series which by its terms is registrable as to principal, at the office or
agency of the Company to be maintained as provided in Section 6.2(1), such
Security shall be registered as to principal in the name of the Holder
thereof, and such registration shall be noted on such Security. Any
Security so registered shall be transferable on the Securities Register of
the Company upon presentation of such Security at such office or agency for
similar notation thereon, but, to the extent permitted by law, such
Security may be discharged from registration by being in a like manner
transferred to bearer, whereupon transferability by delivery shall be
restored. To the extent permitted by law, Unregistered Securities shall
continue to be subject to successive registrations and discharges from
registration at the option of the Holders thereof.
Unregistered Securities and Coupons shall be transferred by delivery.
All Securities presented for registration of transfer or for exchange,
redemption or payment shall (if so required by the Company or the
Securities Registrar) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company
and the Securities Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing.
Each Security issued upon registration of transfer or exchange of
Securities pursuant to this Section 3.5 shall be the valid obligation of
the Company, evidencing the same indebtedness and entitled to the same
benefits under this Indenture as the Security or Securities surrendered
upon registration of such transfer or exchange.
-15-
<PAGE> 22
No service charge shall be made for any registration or transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.7, Section 4.3, or
Section 12.4 not involving any transfer.
The Company shall not be required (a) to issue, exchange or register
the transfer of any Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice
of redemption of Securities of such series and ending at the close of
business on the day of such mailing, or (b) to exchange or register the
transfer of any Securities selected, called or being called for redemption
except, in the case of any Security to be redeemed in part, the portion
thereof not to be so redeemed.
None of the Company, the Trustee, any Paying Agent or the Securities
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 3.6 Mutilated, Destroyed, Lost or Stolen Securities or
Coupons. If any temporary or definitive Security or Coupon shall become
mutilated or be destroyed, lost or stolen, and neither the Company nor the
Trustee has been notified that such Security or Coupon has been acquired by
a bona fide purchaser, the Company in the case of a mutilated Security or
Coupon shall, and in the case of a lost, stolen or destroyed Security or
Coupon may in its discretion, execute a new Security (with Coupons, if any,
attached to the mutilated, destroyed, lost or stolen Security so that
neither gain nor loss shall result) or new Coupon, as appropriate. The new
Security shall be of the same series, tenor and principal amount, bearing a
number, letter or other distinguishing symbol not contemporaneously
Outstanding. Upon a Company Request, the Trustee shall authenticate and
deliver, or cause to be authenticated and delivered, such new Security or
new Coupon in exchange and substitution for the mutilated Security or
Coupon, or in lieu of and in substitution for the Security or Coupon so
destroyed, lost or stolen, or if any such Security or Coupon shall have
matured or shall be about to mature, instead of issuing a substituted
Security or Coupon, the Company may pay or authorize the payment of the
same without surrender thereof (except in the case of a mutilated Security
or Coupon). Interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside of the United States, unless otherwise provided pursuant to
Section 3.1. In every case, the applicant for a substituted Security or
Coupon shall furnish to the Company and to the Trustee such security or
indemnity as may be required by them to
-16-
<PAGE> 23
save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof.
Upon the issuance of any substituted Security or Coupon under this
Section 3.6, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee and any Authenticating Agent) connected therewith.
Every substituted Security or Coupon issued pursuant to the provisions
of this Section 3.6 because a Security or Coupon is destroyed, lost or
stolen shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security or Coupon
shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities and Coupons of the same series duly issued hereunder. The
foregoing provisions of this Section 3.6 are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities
and Coupons and shall preclude (to the extent lawful) any and all other
rights or remedies with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 3.7 Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and the
Trustee shall authenticate and deliver temporary Securities (printed,
lithographed or typewritten). Temporary Securities shall be issuable in
any authorized denomination and substantially in the form of the definitive
Securities in lieu of which they are issued but with such omissions,
insertions and variations as may be appropriate for temporary Securities,
all as may be determined by the Company. Every such temporary Security
shall be executed by the Company and shall be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with the
same effect, as the definitive Securities in lieu of which they are issued.
Temporary Securities may be issued as Registered Securities or Unregistered
Securities, with or without one or more Coupons attached. Without
unreasonable delay, the Company will execute and deliver to the Trustee
definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor, at the
Corporate Trust Office of the Trustee, or, in the case of temporary
Securities issued in respect of Unregistered Securities of any series, at
the corporate trust office of the Trustee located in a city specified
elsewhere in this Indenture or pursuant to Section 3.1, and the Trustee
shall authenticate and deliver in exchange for such temporary Securities an
equal aggregate
-17-
<PAGE> 24
principal amount of definitive Securities of the same series with
appropriate Coupons, if any, attached. Such exchange shall be made by the
Company at its own expense and without any charge therefor except that if
any such exchange involves any registration of transfer, the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.
Section 3.8 Payment of Interest; Interest Rights Preserved. The
Holder of any Fully Registered Securities at the close of business on any
record date with respect to any Interest Payment Date shall be entitled to
receive the interest, if any, payable on such Interest Payment Date
notwithstanding the cancellation of such Securities upon any transfer or
exchange after the record date and before such Interest Payment Date. In
the case of Coupon Securities, the Holder of any Coupon shall be entitled
to receive the interest, if any, payable on such Interest Payment Date,
upon surrender on such Interest Payment Date of the Coupon in respect of
such interest. Except as otherwise specified as contemplated by
Section 3.1, for Fully Registered Securities of a particular series the
term "record date" as used in this Section 3.8 with respect to any Interest
Payment Date shall mean the close of business on the last day of the
calendar month preceding such Interest Payment Date if such Interest
Payment Date is the fifteenth day of a calendar month and shall mean the
close of business on the fifteenth day of the calendar month preceding such
Interest Payment Date if such Interest Payment Date is the first day of a
calendar month, whether or not such day shall be a Business Day.
If and to the extent the Company shall default in the payment of
interest due in respect of any Fully Registered Securities, such defaulted
interest shall be paid by the Company, at its election in each case, as
provided either in clause (1) or (2) below:
(1) The Company may make payment of any defaulted interest
to the Holder of Fully Registered Securities at the close of
business on a subsequent record date established by notice given
by mail by or on behalf of the Company to such Holder not less
than 15 days preceding such subsequent record date, such record
date to be not less than 10 days preceding the date of payment of
such defaulted interest.
(2) The Company may make payment of any defaulted interest
on the Fully Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of such series may be
listed, and upon such notice as may be required by
-18-
<PAGE> 25
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Any defaulted interest payment in respect of a Coupon Security of any
series shall be payable pursuant to procedures satisfactory to the Trustee
so that there is no discrimination between the Holders of Fully Registered
Securities and Coupon Securities of such series, and notice of the payment
date therefor shall be given by the Trustee, in the name and at the expense
of the Company, in the manner provided in Section 14.3.
Subject to the foregoing provisions of this Section 3.8, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 3.9 Cancellation. All Securities surrendered for the purpose
of payment, redemption, exchange or registration of transfer or for credit
against any sinking fund, and all Coupons surrendered for payment or
exchange, shall, if surrendered to the Company or any Paying Agent or any
Securities Registrar, be surrendered to the Trustee and promptly cancelled
by it, or, if surrendered to the Trustee, shall be promptly cancelled by
it, and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The
Trustee may destroy cancelled Securities and Coupons and deliver a
certificate of such destruction to the Company or, at the written request
of the Company, shall deliver such cancelled Securities and Coupons to the
Company. If the Company shall acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities or Coupons unless and until the
same are surrendered to the Trustee for cancellation.
Section 3.10 Computation of Interest. Except as otherwise specified
as contemplated by Section 3.1 for Securities of any series, interest on
the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
Section 3.11 Currency and Manner of Payments in Respect of
Securities.
(a) With respect to Registered Securities of any series denominated
in Dollars or Foreign Currency and with respect to Registered Securities of
any series denominated in any currency unit, with respect to which the
Holders of Securities of such series have not made the election provided
for in paragraph (b) below, the following payment provisions shall apply:
-19-
<PAGE> 26
(1) Except as provided in subparagraph (a)(2) or in
subparagraph (e) below, payment of the principal of and premium,
if any, on any Registered Security will be made at the Place of
Payment by delivery of a check in the currency or currency unit
in which the Security is payable on the payment date against
surrender of such Registered Security, and any interest on any
Fully Registered Security will be paid at the Place of Payment by
mailing a check in the currency or currency unit in which such
interest is payable to the Person entitled thereto at the address
of such Person appearing on the Securities Register.
(2) Payment of the principal of, premium, if any, and (with
respect to Fully Registered Securities only) interest, if any, on
such Security may also, subject to applicable law and
regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(b) With respect to Registered Securities of any series denominated
in any currency unit, the following payment provisions shall apply, except
as otherwise provided in paragraphs (e) and (f) below:
(1) It may be provided pursuant to Section 3.1 with respect
to the Securities of such series that Holders shall have the
option to receive payments of principal of, premium, if any, and
(with respect to Fully Registered Securities only) interest, if
any, on such Securities in any of the currencies which may be
designated for such election in such Securities by delivering to
the Trustee a written election, to be in form and substance
satisfactory to the Trustee, not later than the close of business
on the record date immediately preceding the applicable payment
date. Such election will remain in effect for such Holder until
changed by the Holder by written notice to the Trustee (but any
such change must be made not later than the close of business on
the record date immediately preceding the next payment date to be
effective for the payment to be made on such payment date, and no
such change may be made with respect to payments to be made on
any Security of such series with respect to which notice of
redemption has been given by the Company pursuant to Article 4).
Any Holder of any such Security who shall not have delivered any
such election to the Trustee not later than the close of business
on the applicable record date will be paid the amount due on the
applicable payment date in the relevant currency unit as provided
in paragraph (a) of this Section 3.11. Payment of principal of
and premium, if any, shall be made on the
payment date against surrender of such Security. Pay-
-20-
<PAGE> 27
ment of principal of, premium, if any, and (with respect to Fully
Registered Securities only) interest, if any, shall be made at the
Place of Payment by mailing at such location a check, in the
applicable currency or currency unit to the Person entitled thereto at
the address of such Person appearing on the Securities Register.
(2) Payment of the principal of, premium, if any, and (with
respect to Fully Registered Securities only) interest, if any, on
such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(c) Payment of the principal of and premium, if any, on any
Unregistered Security and of interest on any Coupon Security will be made
unless otherwise specified pursuant to Section 3.1 or Section 12.1(e) at
such place or places outside the United States as may be designated by the
Company pursuant to any applicable laws or regulations by any appropriate
method in the currency or currency unit in which the Security is payable
(except as provided in paragraph (e) below) on the payment date against
surrender of the Unregistered Security, in the case of payment of principal
and premium, if any, or the relevant Coupon, in the case of payment of
interest, if any. Except as provided in paragraph (e) below, payment with
respect to Unregistered Securities and Coupons will be made by check,
subject to any limitations on the methods of effecting such payment
specified in the terms of the Security established as provided in
Section 3.1 and Section 12.1(e) or required under applicable laws and
regulations.
(d) Not later than the fourth Business Day after the record date for
each payment date, the Trustee will deliver to the Company a written notice
specifying, in the currency or currency unit in which each series of the
Securities is payable, the aggregate amounts of principal of, and premium
and interest, if any, on, the Securities to be made on such payment date,
specifying the amounts so payable in respect of Fully Registered
Securities, Registered Securities with Coupons and Unregistered Securities
and in respect of the Registered Securities as to which the Holders of
Securities denominated in any currency unit shall have elected to be paid
in another currency as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for pursuant to
Section 3.1, and if at least one Holder has made such election, then not
later than the eighth Business Day following each record date the Company
will deliver to the Trustee an Exchange Rate Officer's Certificate in
respect of the Dollar or Foreign Currency payments to be made on such
payment date. The Dollar or Foreign Currency amount receivable by Holders
of Registered Securities denominated in a currency unit who have elected
payment in such currency as provided in paragraph (b) above shall be
determined
-21-
<PAGE> 28
by the Company on the basis of the applicable Official Currency Unit
Exchange Rate set forth in the applicable Exchange Rate Officer's
Certificate. As used herein, "Official Currency Unit Exchange Rate" means,
with respect to any payment to be made hereunder, the exchange rate between
the relevant currency unit and the Dollar calculated by the agency
specified pursuant to Section 3.1 for the Securities of the relevant series
on the second Business Day (in the city in which such agency has its
principal office) immediately preceding the applicable payment date.
(e) If a Foreign Currency in which any of the Securities are
denominated or payable ceases to be used both by the government of the
country which issued such currency and for the settlement of transactions
by public institutions of or within the international banking community, or
if any currency unit in which a Security is denominated or payable ceases
to be used for the purposes for which it was established, then with respect
to each date for the payment of principal of, and premium and interest, if
any, on, the applicable Securities denominated or payable in such Foreign
Currency or such currency unit occurring after the last date on which such
Foreign Currency or such currency unit was so used (the "Conversion Date"),
the Dollar shall be the currency of payment for use on each such payment
date. The Dollar amount to be paid by the Company to the Trustee and by
the Trustee or any Paying Agent to the Holders of such Securities with
respect to such payment date shall be the Dollar Equivalent of the Foreign
Currency or, in the case of a currency unit, the Dollar Equivalent of the
Currency Unit as determined by the Trustee or the clearinghouse bank, if
any, from time to time selected by the Trustee for purposes of this Section
(the "Dollar Determination Agent"), as of the record date (the "Valuation
Date") in the manner provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in a currency
unit elects payment in a specified Foreign Currency as provided for by
paragraph (b) and such Foreign Currency ceases to be used both by the
government of the country which issued such currency and for the settlement
of transactions by public institutions of or within the international
banking community, such Holder shall receive payment in such currency unit,
or if any such currency unit ceases to be used for the purpose for which it
was established, such Holder shall receive payment in Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Trustee or the Dollar Determination Agent, if any, as of
each Valuation Date and shall be obtained by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on the Valuation
Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Trustee or the Dollar Determination Agent, if
-22-
<PAGE> 29
any, as of each Valuation Date and shall be the sum obtained by adding
together the results obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate on the
Valuation Date for such Component Currency.
(i) For purposes of this Section 3.11, the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit.
A "Specified Amount" of a Component Currency shall mean the number of
units or fractions thereof which such Component Currency represented in the
relevant currency unit on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion. If after the
Conversion Date two or more Component Currencies are consolidated into a
single currency, the Specified Amounts of such Component Currencies shall
be replaced by an amount in such single currency equal to the sum of the
Specified Amounts of such consolidated Component Currencies expressed in
such single currency, and such amount shall thereafter be a Specified
Amount and such single currency shall thereafter be a Component Currency.
If after the Conversion Date any Component Currency shall be divided into
two or more currencies, the Specified Amount of such Component Currency
shall be replaced by Specified Amounts of such two or more currencies, the
sum of which, at the Market Exchange Rate of such two or more currencies on
the date of such replacement, shall be equal to the Specified Amount of
such former Component Currency divided by the number of currencies into
which such Component Currency was divided, and such amounts shall
thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon Dollar
buying rate for that currency for cable transfers quoted on the Valuation
Date as certified for customs purposes by the Federal Reserve Bank of New
York. If such rates are not available for any reason with respect to one
or more currencies for which an Exchange Rate is required, the Trustee or
the Dollar Determination Agent, if any, shall use, in its sole discretion
and without liability on its part, such quotation of the Federal Reserve
Bank of New York as of the most recent available date, or quotations from
one or more major banks in the United States or in the country of issue of
the currency in question, or such other quotations as the Trustee or the
Dollar Determination Agent, if any, shall deem appropriate. Unless
otherwise specified by the Trustee or the Dollar Determination Agent, if
any, if there is more than one market for dealing in any currency by reason
of foreign exchange regulations or otherwise, the market to be used in
respect of such currency shall be
-23-
<PAGE> 30
that upon which a nonresident issuer of securities designated in such
currency would purchase such currency in order to make payments in respect
of such securities. With regard to any currency unit, "Market Exchange
Rate" shall mean the rate of exchange as quoted from one or more major
banks in the United States, or such other rates of exchange designated from
time to time by the Board of Directors pursuant to Section 3.1 or as the
Trustee or Dollar Determination Agent, if any, shall deem appropriate.
All decisions and determinations of the Trustee or the Dollar
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon
the Company and all Holders of the Securities and Coupons, denominated or
payable in the relevant currency or currency units. If a Foreign Currency
ceases to be used both by the government of the country which issued such
currency and for the settlement of transactions by public institutions of
or within the international banking community, the Company, after learning
thereof, will immediately give notice thereof to the Trustee (and the
Trustee will promptly thereafter give notice in the manner provided in
Section 14.3 to the Holders) specifying the Conversion Date. If any
currency unit in which Securities or Coupons are denominated or payable
ceases to be used for the purposes for which it was established, the
Company, after learning thereof, will immediately give notice thereof to
the Trustee (and the Trustee will promptly thereafter give notice in the
manner provided in Section 14.3 to the Holders) specifying the Conversion
Date and the Specified Amount of each Component Currency on the Conversion
Date. In the event of any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above, the Company, after
learning thereof, will similarly give notice to the Trustee. The Trustee
shall be fully justified and protected in relying and acting upon
information received by it from the Company and the Dollar Determination
Agent, if any, and shall not otherwise have any duty or obligation to
determine such information independently.
Section 3.12 Compliance with Certain Laws and Regulations. If any
Unregistered Securities or Coupon Securities are to be issued in any series
of Securities, the Company will use reasonable efforts to provide for
arrangements and procedures designed pursuant to laws or regulations then
applicable to ensure that such Unregistered Securities or Coupon Securities
are sold or resold, exchanged, transferred or paid only in compliance with
such laws or regulations and without adverse consequences to the Company.
-24-
<PAGE> 31
ARTICLE 4
REDEMPTION OF SECURITIES
Section 4.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable
before their maturity except as otherwise specified as contemplated by
Section 3.1 for the Securities of such series.
Section 4.2 Notice of Redemption; Selection of Securities. If the
Company shall desire to exercise the right to redeem all or any part of the
Securities of any series (or all or any part of the Unregistered Securities
of such series or all or any part of the Registered Securities of such
series, if the terms and conditions of redemption shall differ with respect
to Unregistered Securities and Registered Securities of such series as
specified in the terms of such Securities established pursuant to
Section 3.1) in accordance with their terms, the Company shall fix a
Redemption Date and the Company or, at the option of the Company, the
Trustee on behalf of the Company shall provide notice of such redemption at
least 30 and not more than 60 days before such Redemption Date to the
Holders of Securities of such series so to be redeemed as a whole or in
part in the manner provided in Section 14.3. Notice given in the manner
herein specified shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case, failure to
give such notice or any defect in the notice to the Holder of any Security
of a series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other
Security of such series.
Each such notice of redemption shall specify:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the Place or Places of Payment;
(d) that the Securities of such series are being redeemed
at the option of the Company pursuant to provisions contained in
the terms of the Securities of such series or in a supplemental
indenture establishing such series, together with a brief
statement of the facts permitting such redemption;
(e) that payment will be made upon presentation and
surrender of the applicable Securities;
(f) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for payment must be
accompanied by all
-25-
<PAGE> 32
Coupons, if any, maturing on or after the date fixed for redemption,
or the amount of any such missing Coupon or Coupons will be deducted
from the sum due for payment;
(g) that any interest accrued to the Redemption Date will
be paid as specified in the notice; and
(h) that on and after the Redemption Date, any interest
thereon or on the portions thereof to be redeemed will cease to
accrue.
If less than all the Securities of any series are to be redeemed, the
notice of redemption shall specify the numbers of the Securities of such
series to be redeemed. If only Unregistered Securities of any series are
to be redeemed, and if such Unregistered Securities may be exchanged for
Registered Securities, the notice of redemption shall specify the last date
on which exchanges of Unregistered Securities for Registered Securities not
subject to redemption may be made. If any Security of any series is to be
redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and
after the Redemption Date, upon surrender of such Security or any Coupons
appertaining thereto, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof and with
appropriate Coupons will be issued. In the case of Securities providing
appropriate space for such notation, at the option of the Holders, the
Trustee, in lieu of delivering a new Security or Securities, may make a
notation on such Security of the payment of the redeemed portion thereof.
On or before (but at least one Business Day before, in the case of
payments made in a currency or currency unit other than Dollars) the
Redemption Date with respect to the Securities of any series stated in the
notice of redemption given as provided in this Section 4.2, the Company
will deposit with the Trustee or with one or more Paying Agents an amount
of money in the currency or currency unit in which the Securities of such
series and any Coupons appertaining thereto are payable (except as
otherwise specified as contemplated by Section 3.1 for the Securities of
such series and except as provided in Sections 3.11(b), 3.11(e) and 3.11(f)
of this Indenture) sufficient to redeem on such Redemption Date all the
Securities or portions thereof so called for redemption at the applicable
Redemption Price, together with accrued interest to such Redemption Date.
If the Company is acting as its own Paying Agent, it will segregate such
amount and hold it in trust as provided in Section 6.2(7).
If fewer than all the Securities of a series are to be redeemed
(except in the case of a redemption in whole of the Unregistered
Securities, the Coupon Securities, the Registered Securities or the Fully
Registered Securities of such series),
-26-
<PAGE> 33
the Company will give the Trustee written notice not less than 45 days
before the Redemption Date of the aggregate principal amount of Securities
to be redeemed, and the Trustee shall select, not more than 60 days before
the Redemption Date and in such manner as in its sole discretion it shall
deem appropriate and fair, the Securities of such series or portions
thereof (in multiples of 1,000 in the currency or currency unit in which
the Securities of such series are denominated, except as otherwise set
forth in the applicable form of Security) to be redeemed.
Section 4.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as provided in Section 4.2 or Section 5.3, the
Securities or portions of Securities of the series with respect to which
such notice has been given shall become due and payable on the Redemption
Date and at the place or places stated in such notice at the applicable
Redemption Price, together with any interest accrued to such Redemption
Date. On and after the Redemption Date (unless the Company shall default
in the payment of such Securities at the applicable Redemption Price,
together with any interest accrued to the Redemption Date) any interest on
the Securities or portions of Securities of any series so called for
redemption shall cease to accrue. On presentation and surrender of such
Securities and all Coupons, if any, appertaining thereto, at a Place of
Payment in such notice specified, such Securities and Coupons or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price, together with any interest accrued thereon to
the applicable Redemption Date in the currency or currency unit in which
the Securities of such series and the Coupons, if any, appertaining thereto
are payable (except as otherwise specified as contemplated by Section 3.1
for the Securities of such series and except as provided in Sections
3.11(b), 3.11(e) and 3.11(f) of this Indenture).
If any Coupon Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing on or after the Redemption
Date, such Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing Coupons or the
surrender of such missing Coupon or Coupons may be waived by the Company
and the Trustee, if there be furnished to them such security or indemnity
as they may require to save each of them and any Payment Agent harmless.
If thereafter the Holder of such Security shall surrender to any Paying
Agent any such missing Coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that, unless otherwise
provided pursuant to Section 3.1 or Section 12.1(e), interest represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an office or agency located outside of the United States.
-27-
<PAGE> 34
Upon presentation of any Security redeemed in part only and the
Coupons, if any, appertaining thereto, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series and
the Coupons, if any, appertaining thereto, of authorized denominations, in
aggregate principal amount equal to the unredeemed portion of the Security
so presented.
ARTICLE 5
SINKING FUNDS
Section 5.1 Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment."
Section 5.2 Satisfaction of Mandatory Sinking Fund Payments with
Securities. In lieu of making all or any part of any mandatory sinking
fund payment with respect to any Securities of a series in cash, the
Company may at its option (a) deliver to the Trustee Securities of that
series (together with the unmatured Coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, or (b) receive
credit for Securities of that series that have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through
the application of mandatory or optional sinking fund payments pursuant to
the terms of the Securities of such series; provided that such Securities
have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
Section 5.3 Redemption of Securities for Sinking Fund. Not less than
30 days before each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee a certificate signed by the
Treasurer or any Assistant Treasurer of the Company specifying the amount
of the next ensuing sinking fund payment for such series pursuant to the
terms of such series, the portion thereof, if any, which is to be satisfied
by payment of cash in the currency or currency unit in which the Securities
of such series, and the Coupons, if any,
-28-
<PAGE> 35
appertaining thereto, are payable (except as otherwise specified as
contemplated by Section 3.1 for the Securities of such series and except as
provided in Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture) and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of such series pursuant to Section 5.2, and whether
the Company intends to exercise its rights to make a permitted optional
sinking fund payment with respect to such series. Such certificate shall
be irrevocable and upon its delivery the Company shall be obligated to make
the cash payment or payments (in the currency or currency unit described
above) therein referred to, if any, on or before the next succeeding
sinking fund payment date. If the Company fails to deliver such
certificate (or to deliver the Securities and Coupons, if any, specified in
such certificate), the sinking fund payment due on the next succeeding
sinking fund payment date for such series shall be paid entirely in cash
(in the currency or currency unit described above) and shall be sufficient
to redeem the principal amount of the Securities of such series subject to
a mandatory sinking fund payment without the right to deliver or credit
Securities as provided in Section 5.2 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash (in the currency or currency unit described above), plus any unused
balance of any preceding sinking fund payments made with respect to the
Securities of any particular series, shall be applied by the Trustee (or by
the Company if the Company is acting as its own Paying Agent) on the
sinking fund payment date on which such payment is made (or, if such
payment is made before a sinking fund payment date, on the sinking fund
payment date following the date of such payment) to the redemption of
Securities of such series at the Redemption Price specified in such
Securities with respect to the sinking fund, together with accrued
interest, if any, to the applicable Redemption Date. Any sinking fund
moneys not so applied or allocated by the Trustee (or by the Company if the
Company is acting as its own Paying Agent) to the redemption of Securities
shall be added to the next sinking fund payment received by the Trustee (or
if the Company is acting as its own Paying Agent, segregated and held in
trust as provided in Section 6.2(7)) for such series and, together with
such payment (or such amount so segregated) shall be applied in accordance
with the provisions of this Section 5.3. Any and all sinking fund moneys
with respect to the Securities of any particular series held by the Trustee
(or if the Company is acting as its own Paying Agent, segregated and held
in trust as provided in Section 6.2(7)) on the last sinking fund payment
date with respect to Securities of such series and not held for the payment
of redemption of particular Securities of such series shall be applied by
the Trustee (or by the Company if the Company is acting as its own Paying
Agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for the purpose, to the payment of the principal of
the Securities of such series at
-29-
<PAGE> 36
maturity. The Trustee shall not convert any currency or currency unit in
which the Securities of such series are payable for the purposes of such
sinking fund application unless specifically requested to do so by the
Company, and any such conversion agreed to by the Trustee in response to
such request shall be for the account and at the expense of the Company and
shall not affect the Company's obligation to pay the Holders in the
currency or currency unit to which such Holders may be entitled.
The Trustee shall select or cause to be selected the Securities to be
redeemed upon such sinking fund payment date in the manner specified in the
last paragraph of Section 4.2 and the Company, or the Trustee on behalf of
the Company, shall cause notice of the redemption thereof to be given in
the manner provided in Section 4.2, except that the notice of redemption
shall also state that the Securities are being redeemed by operation of the
sinking fund and whether the sinking fund payment is mandatory or optional,
or both, as the case may be. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Section 4.3.
On or before (but at least one Business Day before, in the case of
payments made in a currency or currency unit other than Dollars) each
sinking fund payment date, the Company shall pay to the Trustee (or, if the
Company is acting as its own Paying Agent, will segregate and hold in trust
as provided in Section 6.2(7)) in cash (in the currency or currency unit
described in the first paragraph of this Section 5.3) a sum equal to the
principal and any interest accrued to the Redemption Date for Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant
to this Section.
Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund for such series
during the continuance of a default in payment of interest, if any, on any
Securities of such series or of any Event of Default (other than an Event
of Default occurring as a consequence of this paragraph) with respect to
the Securities of such series. If, however, the notice of redemption shall
have been provided in accordance with the provisions hereof, the Trustee
(or the Company if the Company is acting as its own Paying Agent) shall
redeem such Securities if cash (in currency or currency unit described in
the first paragraph of this Section 5.3) sufficient for that purpose shall
be deposited with the Trustee (or segregated by the Company) for that
purpose in accordance with the terms of this Article. Except as provided
in the immediately preceding sentence, any moneys (in the currency or
currency unit described in the first paragraph of this Section 5.3) in the
sinking fund for such series at the time when any such default or Event of
Default shall occur and any moneys (in the currency or currency
-30-
<PAGE> 37
unit described in the first paragraph of this Section 5.3) thereafter paid
into such sinking fund shall, during the continuance of such default or
Event of Default, be held as security for the payment of the Securities of
such series and the Coupons, if any, appertaining thereto. Notwithstanding
the foregoing, if such Event of Default or default shall have been cured or
waived as provided herein, such moneys (in the currency or currency unit
described in the first paragraph of this Section 5.3) shall thereafter be
applied on the next sinking fund payment date for the Securities of such
series on which such moneys may be applied pursuant to the provisions of
this Section.
ARTICLE 6
CERTAIN COVENANTS OF THE COMPANY
The Company covenants and agrees for the benefit of each series of
Securities that on and after the date of execution of this Indenture and so
long as any of the Securities of such series remain Outstanding:
Section 6.1 Payment of Securities. The Company will duly and
punctually pay or cause to be paid (in the currency or currency unit in
which the Securities of such series and Coupons, if any, appertaining
thereto are payable, except as otherwise specified as contemplated by
Section 3.1 for the Securities of such series and except as provided in
Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture) the principal of,
and the premium and interest, if any, on, the Securities of such series at
the times and places and in the manner provided in such Securities, any
Coupons appertaining thereto, and in this Indenture.
The interest on Coupon Securities shall be payable only upon
presentation and surrender of the Coupons for such interest installments as
they mature. The interest, if any, on any temporary Unregistered Security
shall be paid, as to any interest evidenced by a Coupon attached thereto,
if any, only upon presentation and surrender of such Coupon, and, as to
other installments of interest, if any, only upon presentation of such
Security for notation thereon of the payment of such interest.
Section 6.2 Other Covenants.
(1) Office or Agency. The Company will maintain an office or agency
where Registered Securities of such series may be presented or surrendered
for payment, where Securities of such series may be surrendered for
registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of such series and this
Indenture may be served, which office or agency shall initially be the
Corporate Trust Office of the Trustee. So long as any Coupon
-31-
<PAGE> 38
Securities or Unregistered Securities of any series remain Outstanding, the
Company will (except as specified pursuant to Section 3.1 or Section
12.1(e)) maintain one or more offices or agencies outside the United States
in such city or cities as may be specified elsewhere in this Indenture or
as contemplated by Section 3.1, with respect to such series where Coupons
appertaining to Securities of such series or Unregistered Securities of
such series may be surrendered or presented for payment, or surrendered for
exchange pursuant to Section 3.5 and where notices and demands to or upon
the Company in respect of Coupons appertaining to Securities of such series
or the Unregistered Securities of such series or of this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If
at any time the Company shall fail to maintain such required office or
agency or shall fail to furnish the Trustee with the address thereof,
presentations, surrenders, notices and demands in respect of Registered
Securities may be made or served at the Corporate Trust Office of the
Trustee and the corporate trust office of any Authenticating Agent
appointed hereunder, and presentations, surrenders, notices and demands in
respect of Coupons appertaining to Securities of any series and
Unregistered Securities may be made or served at the corporate trust office
of the Trustee in the other city or cities referred to above; and the
Company hereby appoints the Trustee and any Authenticating Agent appointed
hereunder its agents to receive all such presentations, surrenders, notices
and demands. The Company may also from time to time designate one or more
other offices or agencies where the Securities of such series may be
presented or surrendered for any or all of such purposes, and may from time
to time rescind such designation.
(2) Maintenance of Corporate Existence. The Company will at all
times take or cause to be taken all such action as may from time to time be
necessary to maintain, preserve or renew its corporate existence; provided,
however, that nothing in this Section 6.2(2) shall prevent any merger or
consolidation permitted by Section 6.2(3).
(3) Consolidations, Mergers, etc. The Company will not lease, sell,
transfer or otherwise dispose of all or substantially all of its assets to,
or consolidate with, or merge into, any other person, firm or corporation,
or permit any other person, firm or corporation to merge into the Company,
unless the person, firm or corporation to which such assets shall have been
leased, sold, transferred or otherwise disposed of or the corporation
formed by such consolidation or the corporation into which the Company
shall have been merged, as the case may be (any such person, firm or
corporation, other than the Company, being herein called the "New
Company"), shall expressly assume the due and punctual payment of the
principal of, and premium and interest, if any, on, all of the Securities
of each series and the due and punctual performance of all of the covenants
and conditions of the Indenture and the Securities of each series,
-32-
<PAGE> 39
and unless immediately after any such transaction, no default shall exist
in the performance of any of the covenants and conditions of the Indenture
or the Securities of any series. In case of any such consolidation,
merger, sale or conveyance and upon any such assumption by the New Company,
the New Company shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the Company and the
predecessor corporation shall be relieved of any further obligation under
the Indenture.
(4) Other Instruments, etc. The Company, from time to time, upon the
written request of the Trustee (which the Trustee, subject to Section 9.1,
shall be under no obligation to make), will execute, acknowledge and
deliver all such further and additional instruments and take all such
further action as may be reasonable or may be required to carry out the
intention of the Indenture, and to provide for the payment of the
Securities of each series, according to the intent and purposes expressed
in the Indenture and in the Securities of such series.
(5) Permit No Vacancy in Office of Trustee. The Company, whenever
necessary to avoid or fill a vacancy in the office of the Trustee, will
appoint a Trustee in the manner provided in Section 9.9, so that there
shall be at all times a Trustee with respect to each series of Securities
hereunder.
(6) Agreement with Paying Agent. If the Company shall appoint a
Paying Agent other than the Trustee with respect to the Securities of any
series, the Company will cause such Paying Agent to execute and deliver to
the Trustee, an instrument in which such Paying Agent shall agree with the
Trustee subject to the provisions of Section 6.2(7):
(a) that it will hold all sums held by it as such Paying
Agent for the payment of the principal of, and premium or
interest, if any, on, the Securities of such series (whether such
sums have been paid to it by the Company or by any other obligor
on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series, and the Coupons, if
any, appertaining thereto or for the benefit of the Trustee;
(b) that it will give the Trustee notice of any default by
the Company (or by any other obligor on the Securities of such
series) in the making of any payment of the principal of, or
premium or interest, if any, on, the Securities of such series
when the same shall be due and payable; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, pay promptly to the
Trustee all sums so held in trust by such Paying Agent.
-33-
<PAGE> 40
(7) Money for Securities Payments To Be Held in Trust. The Company,
if it shall act as its own Paying Agent with respect to the Securities of
any series, on or before the due date of the principal of, or premium or
interest, if any, on, the Securities of such series or the Coupons, if any,
appertaining thereto, will set aside, segregate and hold in trust for the
benefit of the Holders of the Securities of such series and the Coupons, if
any, appertaining thereto, or for the benefit of the Trustee, a sum (in the
currency or currency unit in which the Securities of such series are
denominated, except as otherwise specified as contemplated by Section 3.1
for the Securities of such series and except as provided in Sections
3.11(b), 3.11(e) and 3.11(f) of this Indenture) sufficient to pay such
principal, premium, if any, or interest, if any, so becoming due and will
notify the Trustee of such action, or any failure (by it or any other
obligor on the Securities of such series and the Coupons, if any,
appertaining thereto) to take such action.
Whenever the Company shall have one or more Paying Agents with respect
to the Securities of any series, it will, before the due date of the
principal of, or premium or interest, if any, on, the Securities of such
series or the Coupons, if any, appertaining thereto, deposit with a
designated Paying Agent a sum (in the currency or currency unit described
in the preceding paragraph) sufficient to pay the principal, premium, if
any, or interest, if any, so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium, if any, or
interest, if any, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee at its Corporate Trust Office of its
failure so to act, provided that, anything in Subdivisions (6) and (7) of
this Section 6.2 to the contrary notwithstanding, the agreement to hold
sums in trust as provided therein is subject to the provisions of Section
13.4.
(8) Compliance Reports. The Company will, not less than annually
following the first date of issuance of any series of Securities under this
Indenture, file with the Trustee, a certificate of the principal executive
officer, a principal financial officer or a principal accounting officer of
the Company, stating whether or not, to the knowledge of the signer, the
Company has complied with all conditions or covenants on its part contained
in this Indenture, or if the signer has obtained knowledge of any default
by the Company in the performance, observance, or fulfillment of any such
condition or covenant, specifying each such default and the nature thereof
(provided that, for purposes of this subsection (b), compliance shall be
determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture).
Section 6.3 Waiver. The observance of any provision of this
Article 6 (except Section 6.1, subsections (5), (6) and (7)
-34-
<PAGE> 41
of Section 6.2 and Section 6.3) may be waived with respect to any series of
the Securities (either generally or in a particular instance and either
before or after the time for such observance) if the Company shall have
obtained the consent of the holders of at least a majority in aggregate
principal amount of all Outstanding Securities of such series.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 7.1 Semiannual Lists of Holders. The Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee for the
Securities of each series (i) semiannually, not more than 15 days after
each record date for the payment of interest, if any, in respect of
Securities of such series and on dates in each year to be determined
pursuant to Section 3.1 if the Securities of such series do not bear
interest, and (ii) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of the Registered Securities of such series, as of
the record dates therefor (and on dates to be determined pursuant to
Section 3.1 if the Securities of such series do not bear interest);
provided, however, that no such list need be furnished so long as the
Trustee is the Securities Registrar for such series. Any such list may be
dated as of a date not more than 15 days before the time such information
is furnished or caused to be furnished and need not include information
received after such date. The Company shall also be required to furnish
such information known to it concerning the Holders of Coupons and
Unregistered Securities. Notwithstanding the foregoing, the Company shall
have no obligation to investigate any matter relating to any Holder of an
Unregistered Security or any Holder of a Coupon.
Section 7.2 Preservation of Information. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of Securities of
each series (1) contained in the most recent list furnished to it as
provided in Section 7.1, (2) received by it in the capacity of Paying Agent
for such series (if so acting) hereunder and of Securities Registrar for
such series, and (3) filed with it within two preceding years pursuant to
the provisions of paragraph (2) of subsection (c) of Section 7.4.
The Trustee for any series of the Securities may (1) destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished, (2) destroy any information received by it as Paying Agent for
such series (if so acting) hereunder upon delivering to itself as Trustee a
list containing the names and addresses of the Holders of Securities
-35-
<PAGE> 42
of such series obtained from such information since the delivery of the
next previous list, if any, (3) destroy any list delivered to itself as
Trustee that was compiled from information received by it as Paying Agent
(if so acting) hereunder upon the receipt of a new list so delivered, and
(4) destroy any information filed with it by Holders of Securities of such
series for the purpose of receiving reports pursuant to the provisions of
paragraph (2) of subsection (c) of Section 7.4, but not until two years
after such information has been filed with it.
(b) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee for such
series, and furnish to the Trustee reasonable proof that each such
applicant has owned a Security of such series for a period of at least six
months preceding the date of such application, and such application states
that the applicants desire to communicate with other Holders of Securities
of such series or with Holders of Securities of all series for which the
Trustee is serving as Trustee with respect to their rights under this
Indenture or under such Securities, and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the
receipt of such application, at its election, either
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 7.2, or
(2) inform such applicants as to the approximate number of
Holders of Securities of such series or of all series, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee, in accordance with the
provisions of subsection (a) of this Section 7.2, and as to the
approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or all Holders
of Securities of series for which it is Trustee, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this
Section 7.2, a copy of the form of proxy or other communication that is
specified in such request. The Trustee shall mail such copies with
reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable
expenses of mailing, unless within five days after such tender, the Trustee
shall mail to
-36-
<PAGE> 43
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best interest
of the Holders of Securities of such series or of the Holders of Securities
of all series for which it is Trustee, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statements so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all Holders of
Securities of such series or to all Holders of Securities of all series for
which it is Trustee, as the case may be, with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each Holder of the Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Paying Agent shall be held accountable by reason of the
disclosure of any information as to the names or addresses of the Holders
of Securities in accordance with the provisions of subsection (b) of this
Section 7.2, regardless of the source from which such information was
derived, or that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made thereunder.
Section 7.3 Periodic Reports by Company. (a) The Company covenants
and agrees to file with the Trustee for each series of the Securities,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules or regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended. If the Company is not required to file such information,
documents or reports pursuant to either of such sections, then the Company
shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, the
supplementary or periodic information, documents or reports that may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed or registered on a national
securities exchange prescribed from time to time in such rules and
regulations.
-37-
<PAGE> 44
(b) The Company covenants and agrees to file with the Trustee for
each series of the Securities and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission,
additional information, documents and reports with respect to compliance by
the Company with the conditions or covenants provided for in this Indenture
required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit to all Holders of
Securities within 30 days after the filing thereof with the Trustee for
each series of the Securities, in the manner and to the extent provided in
subsection (c) of Section 7.4 with respect to reports pursuant to
subsection (a) of Section 7.4, summaries of any information, documents or
reports filed by the Company pursuant to subsection (a) or (b) of this
Section 7.3 as may be required by rules and regulations prescribed from
time to time by the Commission.
Section 7.4 Trustee's Reports to Holders. (a) Within 60 days after
the first January 1 that is not less than 60 days after the first issuance
of Securities of any series under this Indenture, and within 60 days after
each subsequent January 1, so long as any Securities are Outstanding
hereunder, the Trustee for each series of the Securities shall transmit to
all Holders of Securities of such series as hereinafter provided in this
Section 7.4 a brief report with respect to any of the following events that
may have occurred during the 12 months preceding the date of such report
(but if no such event has occurred within such period, no report need be
transmitted):
(1) any change to its eligibility under Section 9.8, and
its qualifications under Section 9.7, or in lieu thereof, if to
the best of its knowledge, it has continued to be eligible and
qualified under such Sections, a written statement to such
effect;
(2) the creation of or any material change to a
relationship specified in Sections 310(b)(1) through Section
310(b)(10) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain unpaid
on the date of such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Securities of any series, on any property or funds held or
collected by it as Trustee if the aggregate of such advances so
remaining unpaid equal more than one-half of 1% of the principal
amount of the Securities of any series Outstanding on the date of
such report;
(4) any change to the amount, interest rate or maturity
date of all other indebtedness owing by the
-38-
<PAGE> 45
Company (or by any other obligor on the Securities of any series) to
the Trustee in its individual capacity, on the date of such report,
with a brief description of any property held as collateral security
therefor, except an indebtedness based upon a creditor relationship
arising in any manner described in paragraphs (2), (3), (4) or (6) of
subsection (b) of Section 9.12;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date
of such report;
(6) any additional issue of Securities of any series for
which it is Trustee which the Trustee has not previously
reported; and
(7) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously
reported and which in its opinion materially affects the
Securities of any series, except action in respect of a default,
notice of which has been or is to be withheld by it in accordance
with the provisions of Section 8.9.
(b) The Trustee for each series of the Securities shall transmit to
all Holders of Securities of such series, as hereinafter provided, a brief
report with respect to the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee as such since the date of the last report
transmitted pursuant to the provisions of subsection 7.4(a) (or if no such
report has yet been so transmitted, since the date of execution of this
Indenture), for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities of any series, on property or funds
held or collected by it as Trustee, and which it has not previously
reported pursuant to this subsection, if such advances remaining unpaid at
any time aggregate more than 10% of the principal amount of Securities of
such series Outstanding at such time. Such report shall be transmitted
within 90 days after such time.
(c) Reports pursuant to this Section 7.4 shall be transmitted by
mail:
(1) to all registered Holders of Registered Securities, as
the names and addresses of such Holders appear in the applicable
Securities Register;
(2) to the Holders of Securities of any series that have,
within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose;
and
-39-
<PAGE> 46
(3) except in the cases of reports pursuant to
subsection (b) of this Section 7.4, to each Holder of a Security
of any series whose name and address is preserved at the time by
the Trustee for such series, as provided in subsection (a) of
Section 7.2.
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities of any series, be filed by the
Trustee for such series with each stock exchange upon which such Securities
are listed and also with the Commission. The Company agrees to notify the
Trustee for each series when and as any Securities become listed on any
stock exchange.
Section 7.5 Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 6.2(8)) shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
-40-
<PAGE> 47
ARTICLE 8
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
Section 8.1 Events of Default. "Event of Default," whenever used
herein with respect to Securities of any series, means any one of the
following events and such other events as may be established with respect
to the Securities of such series as contemplated by Section 3.1 hereof
(whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article 15 or be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative
or governmental body), continued for the period of time, if any, and after
the giving of notice, if any, designated herein or therein, as the case may
be, unless such event is either inapplicable to a particular series or it
is specifically deleted or modified in the applicable resolution of the
Board of Directors or in the supplemental indenture under which such series
of Securities is issued, as the case may be, as contemplated by
Section 3.1:
(1) a default shall occur in the punctual payment of the
principal of and premium, if any, on any Security of such series
when and as the same shall become due and payable, at its
maturity, or a default shall occur in the making or satisfaction
of any sinking fund payment or analogous obligation as and when
the same shall become due and payable by the terms of the
Securities of such series;
(2) a default shall occur in the payment of any installment
of interest on any Security of such series as and when the same
shall become due and payable, and such default shall continue for
30 days;
(3) a default shall occur in the due observance or
performance in any material respect of any other covenant,
condition or agreement on the part of the Company in respect of
the Securities of such series contained in this Indenture (other
than a covenant or agreement in respect of the Securities of such
series a default in whose observance is specifically dealt with
elsewhere in this Section), and any such default shall continue
for 90 days after written notice thereof, specifying such default
and requiring the same to be remedied, shall have been given to
the Company by the Trustee for such series, which may, in its
discretion, give such notice and shall do so at the request
pursuant to Section 10.1 of the Holders of at least 25% in
principal amount of the Securities of such series at the time
Outstanding;
-41-
<PAGE> 48
(4) by the order of a court of competent jurisdiction, a
receiver or liquidator or trustee of the Company or of any of the
property of the Company shall be appointed and such receiver or
liquidator or trustee shall not have been discharged within a
period of 120 days, or, by decree of such a court, the Company
shall have been adjudicated bankrupt or insolvent or any
substantial part of the property of the Company shall have been
sequestered and such decree shall have continued undischarged and
unstayed for a period of 120 days after the entry thereof, or a
petition to declare bankrupt or to reorganize the Company
pursuant to any provision of the federal Bankruptcy Code, or
pursuant to any other similar statute applicable to the Company,
as now or hereafter in effect, shall be filed against the Company
(and, in the case of any such petition filed pursuant to any
provision of a statute which requires the approval of such
petition by a court, shall be approved by such a court) and shall
not be dismissed within 120 days after such filing;
(5) the Company shall file a petition in voluntary
bankruptcy under any provision of any bankruptcy law or shall
consent to the filing of any bankruptcy or reorganization
petition against it under any similar law, or (without limitation
of the generality of the foregoing) the Company shall file a
petition or answer or consent seeking relief or assisting in
seeking relief for the Company in a proceeding under any of the
provisions of the federal Bankruptcy Code, or pursuant to any
other similar statute applicable to the Company, as now or
hereafter in effect, or an answer admitting the material
allegations of a petition filed against it in such a proceeding,
or the Company or its directors or stockholders shall take action
seeking the dissolution or liquidation of the Company (except in
connection with a consolidation, merger, sale or conveyance
pursuant to Article 6 hereof), or the Company shall make an
assignment for the benefit of its creditors, or shall admit in
writing its inability to pay its debts generally as they become
due, or shall consent to the appointment of a receiver or
receivers, or trustee or trustees, or liquidator or liquidators,
of it or of all or any part of its property; or
(6) any other Event of Default provided in the applicable
resolution of the Board of Directors or in the supplemental
indenture under which such series of Securities is issued, as the
case may be, as contemplated by Section 3.1.
-42-
<PAGE> 49
If an Event of Default with respect to Securities of any series at the
time Outstanding shall have occurred and be continuing, then and in each
and every such case, unless the principal of all the Securities of such
series shall have already become due and payable, either the Trustee for
such series or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by the
Holders), may declare the principal amount (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all
the Securities of such series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, notwithstanding anything contained to the contrary in this
Indenture or in the Securities of such series. The provisions of the
foregoing sentence, however, are subject to the condition that if, at any
time after the principal amount (or if the Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) of the Securities of any
series shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the following events shall occur:
(a) the Company shall pay or shall deposit with the Trustee
for such series a sum sufficient to pay in the currency or
currency unit in which the Securities of such series are payable
(except as otherwise specified as contemplated by Section 3.1 for
the Securities of such series and except as provided in Sections
3.11(b), 3.11(e) and 3.11(f) of this Indenture):
(i) all matured installments of interest, if any, upon
all the Securities of such series,
(ii) the principal of, and premium, if any, on, all
Securities of such series that shall have become due
otherwise than by acceleration (with interest on such
principal and premium, if any, and, if payment of the same
is enforceable under applicable law, on overdue installments
of interest, at the Overdue Rate or Yield to Maturity (in
the case of Original Issue Discount Securities) applicable
to such series to the date of such payment or deposit), and
(iii) all amounts payable to the Trustee pursuant to
Section 9.6; and
-43-
<PAGE> 50
(b) any and all defaults under this Indenture with respect
to such series of Securities, other than the nonpayment of
principal of and accrued interest on Securities of such series
that shall have become due by acceleration, shall have been
remedied, cured or waived, or provision shall have been made
therefor to the satisfaction of the Trustee;
then and in every such case, the Holders of a majority in aggregate
principal amount of the Securities of such series then Outstanding, by
written notice to the Company and to the Trustee, may waive all defaults
and its consequences; but no such waiver shall extend to or shall affect
any subsequent default, or shall impair any right consequent thereon.
If the Trustee shall have proceeded to enforce any right under this
Indenture or such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case
the Company and the Trustee shall be restored to their several positions
and rights hereunder, and all rights, remedies and powers of the Company
and the Trustee shall continue as though no such proceedings had been
taken.
Section 8.2 Collection of Indebtedness by Trustee. The Company
covenants that if:
(a) default shall occur in payment of any installment of
interest on any Security of any series, and such default shall
have continued for a period of 30 days,
(b) default shall occur in the payment of the principal of,
or premium, if any, on, any Security of any series upon maturity
of the Securities of that series, or
(c) default shall occur in the making or satisfaction of
any sinking fund payment or analogous obligation when the same
becomes due by the terms of the Securities of any series,
then, upon demand of the Trustee for such series, the Company will pay to
the Trustee, for the benefit of the Holder of any such Security (or Holders
of any such series of Securities in the case of clause (c) above) and the
Holders of any Coupons appertaining thereto the whole amount that then
shall have become due and payable on any such Security (or Securities of
any such series in the case of clause (c) above) and matured Coupons, if
any, appertaining thereto for the principal, premium, if any, and interest,
if any, with interest upon the overdue principal and premium, if any, and,
as far as payment of the same is enforceable under applicable law, on
overdue
-44-
<PAGE> 51
installments of interest, at the Overdue Rate or Yield to Maturity (in the
case of Original Issue Discount Securities) applicable to any such Security
(or Securities of any such series in the case of clause (c) above); and, in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and any further amounts payable to the
Trustee pursuant to the provisions of Section 9.6.
If the Company shall fail to pay such amounts upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid and may prosecute
any such action or proceeding to judgment or final decree, and may enforce
any such judgment or final decree against the Company or any other obligor
on such Security (or Securities of any such series in the case of
clause (c) above) and Coupons and collect in the manner provided by law out
of the property of the Company or any other obligor on such Security (or
Securities of any such series in the case of clause (c) above) and Coupons
wherever situated the moneys adjudged or decreed to be payable.
The Trustee for any series of the Securities shall be entitled and
empowered, either in its own name as trustee of an express trust, or as
attorney-in-fact for the Holders of any of the Securities of such series
and for the Holders of any Coupons appertaining thereto, or in both such
capacities, to file such proof of debt, amendment of proof of debt, claim,
petition or other document as may be necessary or advisable in order to
have the claims of the Trustee and of the Holders of the Securities of such
series and the Holders of any Coupons appertaining thereto allowed in any
equity receivership, insolvency, bankruptcy, liquidation, readjustment,
reorganization or other similar proceedings, or any judicial proceedings,
relative to the Company or any other obligor on the Securities of such
series and any Coupons appertaining thereto or to its creditors or its
property. The Trustee for each series of the Securities is hereby
irrevocably appointed (and the successive Holders of the Securities of such
series and the Holders of any Coupons appertaining thereto, by taking and
holding the same, shall be conclusively deemed to have so appointed the
Trustee) the true and lawful attorney-in-fact of the Holders of the
Securities of such series and the Holders of any Coupons appertaining
thereto, with authority to make or file in the names of the Holders of the
Securities of such series and the Holders of any Coupons appertaining
thereto or on behalf of all the Holders of Securities of all series and the
Holders of any Coupons appertaining thereto for which it is Trustee, any
proof of debt, amendment of proof of debt, claim, petition or other
document in any such proceedings and to receive payment of any sums
becoming distributable on account thereof, and to execute any other papers
and documents and do and perform any and all acts and things for or on
behalf of such Holders of Securities of such
-45-
<PAGE> 52
series and the Holders of any Coupons appertaining thereto, as may be
necessary or advisable in the opinion of the Trustee in order to have the
claims of the Holders of the Securities of such series and the Holders of
any Coupons appertaining thereto against the Company or any other obligor
on the Securities of such series and any Coupons appertaining thereto
and/or its property allowed in any such proceedings, and to receive payment
of or on account of such claims. Nothing herein contained, however, shall
be deemed to authorize or empower the Trustee to consent to or accept or
adopt, on behalf of any Holder of Securities of any series or any Holder of
any Coupons appertaining thereto, any plan of reorganization or
readjustment of the Company or any other obligor on the Securities of any
series and any Coupons appertaining thereto, or, by other action of any
character in any such proceeding, to waive or change in any way any right
of any Holder of any Security of any series or any Holder of any Coupons
appertaining thereto even though it may otherwise be entitled so to do
under any present or future law.
All rights of action and of asserting claims under this Indenture, or
under the Securities of any series or any Coupons appertaining thereto, may
be enforced by the Trustee for such series without the possession of any of
the Securities of such series or any Coupons appertaining thereto, or the
production thereof on any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall be for the ratable benefit of the Holders of the Securities or
Coupons in respect of which such action was taken.
Section 8.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee for the Securities of any series under or pursuant
to, or as authorized or permitted by, this Article 8, together with any
other sums held by the Trustee (as such) hereunder (other than sums held in
trust for the benefit of the Holders of particular Securities or Coupons),
shall be applied as follows at the date fixed by the Trustee for
distribution of such moneys, upon presentation (except in respect of
subdivision FIRST below) of the several Securities and any Coupons
appertaining thereto with respect to which such moneys were collected, and
stamping thereon of an appropriate legend respecting the payment, if only
partially paid, or upon the surrender thereof, if fully paid:
FIRST: To the payment of all amounts due the Trustee
pursuant to the provisions of Section 9.6;
SECOND: If the principal of such Outstanding Securities
shall not have become due and shall not be unpaid, to the payment
of the interest, if any, on the Securities of such series in the
order of maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by
-46-
<PAGE> 53
the Trustee), so far as it may be enforceable under applicable law,
upon the overdue installments at the Overdue Rate or Yield to Maturity
(in the case of Original Issue Discount Securities) applicable to such
series, such payments to be made ratably to the persons entitled
thereto without discrimination or preference;
THIRD: If the principal of such Outstanding Securities
shall have become due by declaration or otherwise, to the payment
of the whole amount then owing and unpaid upon the Securities of
such series for principal, premium, if any, and interest, if any,
with interest upon any overdue principal and premium, if any, and
also (to the extent that such interest has been collected by the
Trustee), so far as payment of the same is enforceable under
applicable law, upon any overdue installments of interest, if
any, at the Overdue Rate or Yield to Maturity (in the case of
Original Issue Discount Securities) applicable to such series;
and, if such moneys shall be insufficient to pay in full the
whole amount so due and unpaid upon the Securities of such series
then to the payment of such principal, premium, if any, and
interest, if any, without preference or priority of principal,
and premium, if any, over interest, or of interest, if any, over
principal, and premium, if any, or of any installment of
interest, if any, over any other installment of interest, if any,
or of any Security of such series over any other Security of such
series, or of any Coupon appertaining thereto over any other
Coupon appertaining thereto, ratably to the aggregate of such
principal, premium, if any, and interest, if any;
FOURTH: To the payment of all other amounts payable by the
Company under the terms of this Indenture; and
FIFTH: To the payment of the surplus, if any, to the
Company, its successors or assigns or to whosoever may be
lawfully entitled to receive the same, or as a court of competent
jurisdiction may direct.
Section 8.4 Limitation on Suits on Indenture; No Limitation on Suits
on Securities. No Holder of any Security of any series or Holder of any
Coupons appertaining thereto shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee (or other similar
official), or for any other remedy hereunder, unless an Event of Default
shall have occurred and be continuing and such Holder previously shall have
given to the Trustee for such
-47-
<PAGE> 54
series written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such series then
Outstanding shall have made written request upon the Trustee for such
series to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be incurred therein or thereby, and the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It
is understood and intended, and shall be expressly covenanted by the taker
and Holder of every Security and by the taker and Holder of any Coupon
appertaining thereto with every other taker and Holder of any Security and
of any Coupon appertaining thereto and the Trustee for the Securities of
each series, that no one or more Holders of Securities of any series or of
any Coupons appertaining thereto shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder of Securities
of such series or of any Coupons appertaining thereto, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to
enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities of such series or of any Coupons appertaining thereto. For the
protection and enforcement of the provisions of this Section 8.4, each
Holder of Securities of any series or of any Coupons appertaining thereto
and the Trustee for such series shall be entitled to such relief as can be
given either at law or in equity.
Nothing contained in this Indenture, in the Securities of any series,
or in any Coupon appertaining thereto, shall affect or impair the
obligation of the Company, which is unconditional and absolute, to pay the
principal of, and premium or interest, if any, on, the Securities of such
series at the places, times and rates, in the amounts and in the coin,
currency or currency unit therein and herein prescribed or affect or impair
the right of action, which is also absolute and unconditional, of any
Holder of any Security or Coupon, if any, to institute suit to enforce such
payment at the due dates expressed in such Security or Coupon, if any,
unless such Holder consents thereto.
Section 8.5 Remedies Cumulative; Delay Not To Impair Rights. All
powers and remedies given by this Article 8 to the Trustee for any series
of the Securities or to the Holders of such Securities or any Coupons
appertaining thereto shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders of such Securities or any
Coupons appertaining thereto by judicial proceedings or otherwise to
enforce the performance or observance of the covenants and agreements
contained in this Indenture. No delay
-48-
<PAGE> 55
or omission of the Trustee or of any Holder of any of the Securities of
such series or any Coupons appertaining thereto to exercise any right or
power accruing upon any default shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein. Subject to the provisions of Section 8.4, every power and remedy
given by this Article 8 or by law to the Trustee for any series of the
Securities or to Holders of the Securities of such series or any Coupons
appertaining thereto may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee for such series or by Holders of
such Securities or any Coupons appertaining thereto. No waiver of any
default hereunder shall extend to or affect any other or subsequent default
or impair any rights or remedies consequent thereon.
Section 8.6 Directions by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of any series at
the time Outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
for such series or exercising any trust or power conferred on the Trustee.
Section 8.7 Undertakings for Costs. All parties to this Indenture
agree and each Holder of any Security and each Holder of any Coupon by his
acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or any suit against the Trustee for the
Securities of any series for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant. The provisions of this
Section 8.7, however, shall not apply to any suit instituted by the Trustee
for the Securities of any series, to any suit instituted by any Holder of
Securities of any series, or group of such Holders holding in the aggregate
more than 10% in aggregate principal amount of the Outstanding Securities
of such series, or any suit instituted by any Holder of Securities or
Coupons for the enforcement of the payment of the principal of, or premium
or interest, if any, on, any Security or Coupon on or after the due date
expressed in such Security or Coupon, on or after the date fixed for
redemption or after such Security or Coupons shall have become due by
declaration.
Section 8.8 Judgment Currency. If, for the purpose of obtaining a
judgment in any court with respect to any obligation of the Company
hereunder or under any Security or Coupon, it shall become necessary to
convert into any other currency or currency unit any amount in the currency
or currency unit due hereunder or under such Security or Coupon, then such
conversion
-49-
<PAGE> 56
shall be made at the Conversion Rate as in effect on the date the Company
shall make payment to any Person in satisfaction of such judgment. If
pursuant to any such judgment, conversion shall be made on a date other
than the date payment is made and there shall occur a change between such
Conversion Rate and the Conversion Rate as in effect on the date of
payment, the Company agrees to pay such additional amounts (if any) as may
be necessary to ensure that the amount paid is the amount in such other
currency or currency unit which, when converted at the Conversion Rate as
in effect on the date of payment or distribution, is the amount then due
hereunder or under such Security or Coupon. Any amount due from the
Company under this Section 8.8 shall be due as a separate debt and is not
to be affected by or merged into any judgment being obtained for any other
sums due hereunder or in respect of any Security or Coupon. In no event,
however, shall the Company be required to pay more in the currency or
currency unit due hereunder or under such Security or Coupon at the
Conversion Rate as in effect when payment is made than the amount of
currency or currency unit stated to be due hereunder or under such Security
or Coupon so that in any event the Company's obligations hereunder or under
such Security or Coupon will be effectively maintained as obligations in
such currency or currency unit.
For purposes of this Section 8.8, "Conversion Rate" shall mean the
spot rate at which, in accordance with the normal banking procedures, the
currency or currency unit into which an amount due hereunder or under any
Security or Coupon is to be converted could be purchased with the currency
or currency unit due hereunder or under any Security or Coupon from major
banks located in the United States or any other principal market for such
purchased currency or currency unit.
Section 8.9 Notice of Default. Within 90 days after the occurrence
of a default hereunder with respect to the Securities of any series, the
Trustee for such series shall transmit by mail to all Holders of Securities
of such series, in the manner and to the extent provided in Section 7.4(c),
and give to all Holders of Securities of such series and of Coupons, if
any, appertaining thereto as otherwise provided in Section 14.3, notice of
such default hereunder with respect to such series known to the Trustee,
unless such default shall have been cured or waived. Notwithstanding the
foregoing, except in the case of a default in the payment of the principal
of, or premium or interest, if any, on, any Security of such series or in
the payment of any sinking fund installment or analogous obligation with
respect to such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series and of Coupons, if
any, appertaining thereto. In the case of any default of the character
specified in Section 8.1(3), no such
-50-
<PAGE> 57
notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section 8.9, the terms
"default" means any event that is, or after notice or lapse of time or both
would become, an Event of Default.
ARTICLE 9
CONCERNING THE TRUSTEE
Section 9.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise,
that a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section 9.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee for the Securities of any series shall not
be liable with respect to any action taken
-51-
<PAGE> 58
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Securities of such series pursuant to
Section 8.6 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with
respect to Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section 9.1.
Section 9.2 Certain Rights of Trustee. Except as otherwise provided
in Section 9.1:
(a) the Trustee may rely, and shall be protected in acting or
refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel, and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee for the Securities of any series shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or
-52-
<PAGE> 59
direction of any of the Holders of Securities of such series pursuant to
this Indenture, unless such Holders of Securities shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be liable for any action taken by it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
Section 9.3 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities or Coupons. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 9.4 May Hold Securities. The Trustee, any Paying Agent,
Securities Registrar, Authenticating Agent or any other agent of the
Company or the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities or Coupons and, subject to Section 9.7
and Section 9.12, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Securities Registrar,
Authenticating Agent or such other agent.
Section 9.5 Money Held in Trust. Money in any currency or currency
unit held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 9.6 Compensation and Reimbursement. The Company agrees:
-53-
<PAGE> 60
(1) to pay to the Trustee for the Securities of each series
from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee for the Securities of each series upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for the Securities of each
series for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the Company
under this Section 9.6, the Trustee for the Securities of any series shall
have a lien prior to the Securities of all series upon all property and
funds held or collected by the Trustee as such, except funds held in trust
for the payment of principal of, and premium or interest, if any, on,
Securities of any series.
The obligations of the Company under this Section 9.6 to compensate
and indemnify the Trustee and to pay and reimburse the Trustee for
expenses, disbursements and advances shall constitute additional
indebtedness under the Indenture and shall survive the satisfaction and
discharge of this Indenture.
Section 9.7 Disqualification; Conflicting Interests. The Trustee for
the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period
of time provided for therein. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture
Act with respect to the Securities of any series, there shall be excluded
(i) the Trustee's interest under this Indenture with respect to Securities
of any particular series of Securities other than that series and, (ii) any
interest of the Trustee under the Indenture, dated as of May 1, 1985,
between Intel Overseas Corporation, the Company, as Guarantor, and Wachovia
Bank and
-54-
<PAGE> 61
Trust Company, N.A., as Trustee, as amended or supplemented, and the
securities issued thereunder. Nothing herein shall prevent the Trustee
from filing with the Commission the application referred to in Section
310(b) of the Trust Indenture Act.
Section 9.8 Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder for the Securities of each series, which
shall be at all times either:
(1) a corporation organized and doing business under the
laws of the United States or of any state or territory thereof or
the District of Columbia, authorized under such laws to exercise
corporate trust powers and subject to supervision or examination
by federal, state, territory or District of Columbia authority;
or
(2) a corporation or other Person organized and doing
business under the laws of a foreign government that is permitted
to act as Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate
trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees, in either
case having a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition
at least annually, pursuant to law or to requirements of its
supervising or examining authority, then for the purposes of this
Section 9.8, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at
any time the Trustee for the Securities of any series shall cease
to be eligible in accordance with the provisions of this
Section 9.8, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article 9. Neither the
Company nor any Person directly or indirectly controlling,
controlled by or under common control with the Company shall
serve as Trustee for the Securities of any series issued
hereunder.
-55-
<PAGE> 62
Section 9.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of
any series and no appointment of a successor Trustee for such series
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 9.10.
(b) The Trustee, or any trustee or trustees hereafter appointed, for
the Securities of any series may resign at any time with respect to one or
more or all such series of Securities by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee for
Securities of any series shall not have been delivered to the Trustee for
such series within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee for such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of one or more series (each voting as a class) or all series at
the time Outstanding for which the Trustee is serving as Trustee may at any
time remove the Trustee with respect to any or all such series, as the case
may be, and nominate with respect to any or all such series, as the case
may be, a successor Trustee by written notice of such action to the
Company, the Trustee for the applicable series and the nominee successor
Trustee. The nominee Trustee shall be deemed appointed as successor
Trustee with respect to any or all of such series, as the case may be,
unless within 10 days after such nomination the Company objects thereto, in
which case the Trustee so removed or any Holder of Securities of the
applicable series may petition any court of competent jurisdiction for an
appointment of a successor Trustee with respect to such series.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail
to comply with Section 310(b) of the Trust Indenture Act with
respect to such series after written request therefor by the
Company or by any Holder of Securities who has been a bona fide
Holder of a Security or Securities of such series for at least
six months, unless the Trustee's duty to resign is stayed in
accordance with the provisions of Section 310(b) of the Trust
Indenture Act;
(2) the Trustee for the Securities of any series shall
cease to be eligible under Section 9.8 with respect to such
series and shall fail to resign after written request therefor by
the Company or by any Holder of Securities of such series; or
-56-
<PAGE> 63
(3) the Trustee for the Securities of any series shall
become incapable of acting with respect to such series, or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any case, (i) the Company may remove the Trustee with respect to
such series, or (ii) subject to Section 8.7, any Holder who has been a bona
fide Holder of a Security or Securities of such series for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee for such series.
(e) The Company shall give notice of such resignation and each
removal of the Trustee and each appointment of a successor Trustee for the
Securities of any series by providing notice of such event to the Holders
of Securities of such series in the manner and to the extent provided in
Section 14.3. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office.
Section 9.10 Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property or money held by such retiring Trustee hereunder,
subject nevertheless to its lien, if any, provided for in Section 9.6.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee for the
Securities of one or more (but not all) series, the Company, the
predecessor Trustee and each successor Trustee for the Securities of any
applicable series shall execute and deliver an indenture supplemental
hereto which shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee for the Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be
-57-
<PAGE> 64
vested in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee. Nothing herein or in such supplemental indenture shall constitute
such Trustee's co-trustees of the same trust and each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee.
No successor Trustee for a series of Securities shall accept its
appointment unless at the time of such acceptance such successor Trustee
shall with respect to such series be qualified and eligible under this
Article.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.10, the Company shall provided notice of the succession of
such Trustee hereunder to the Holders of Securities of any applicable
series and to the Holders of Coupons, if any, appertaining thereto in the
manner and the extent provided in Section 14.3. If the Company fails to
provide such notice within 10 days after the acceptance of appointment by
the successor Trustee, the successor Trustee shall cause such notice to be
given at the expense of the Company.
Section 9.11 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee for the Securities of any
series may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be
the successor of the Trustee for such series hereunder, provided such
corporation shall, with respect to such series, be otherwise qualified and
eligible under this Article, to the extent operative, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto. If any Securities of one or more series shall have been
authenticated, but not delivered, by the Trustee for such series then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities; and if at that time any
of such Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of the Trustee
or such successor to the Trustee.
Section 9.12 Preferential Collection of Claims Against Company.
(a) Subject to subsection (b) of this Section 9.12, if the Trustee
for the Securities of any series shall be or shall
-58-
<PAGE> 65
become a creditor, directly or indirectly, secured or unsecured, of the
Company or any other obligor on the Securities of such series within three
months before a default, as defined in subsection (c) of this Section 9.12,
or after such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold a special account for the
benefit of the Trustee individually, the Holders of the Securities of such
series, the Holders of the Coupons, if any, appertaining thereto and the
holders of other indenture securities (as defined in subsection (c) of this
Section 9.12) the following:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such
three-month period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt
or disposition of any property described in paragraph (2) of this
Section 9.12(a), or from the exercise of any right of setoff
which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the date
of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such three-month period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however,
to the rights, if any, of the Company and its other creditors in
such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the Company)
who is liable thereon, and (ii) the proceeds of the bona fide
sale of any such claim by the Trustee to a third person, and
(iii) distributions made in cash, securities or other property in
respect of claims filed against the Company in bankruptcy or
receivership or in cases or proceedings for reorganization or for
any related or similar purpose pursuant to the federal Bankruptcy
Code or applicable state law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so
held before the beginning of such three-month period;
-59-
<PAGE> 66
(C) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it
as security for any such claim, if such claim was created after
the beginning of such three-month period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving
that at the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in
subsection (c) of this Section 9.12, would occur within three
months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C) above, against the release of any property
held as security for such claim provided in paragraphs (B) or (C)
above, as the case may be, to the extent of the fair value of
such property.
For the purposes of paragraphs (B), (C) and (D) above, property
substituted after the beginning of such three-month period for property
held as security at the time of such substitution shall, to the extent of
the fair value of the property released, have the same status as the
property released, and, to the extent that any claim referred to in any of
such paragraphs is created in renewal of or in substitution for or for the
purpose of repaying or refunding any preexisting claim of the Trustee as
such creditor, such claim shall have the same status as such preexisting
claim.
If the Trustee for the Securities of any series shall be required to
account, the funds and property held in such special account and the
proceeds thereof shall be apportioned among the Trustee, the Holders of the
Securities of such series, the Holders of the Coupons, if any, appertaining
thereto and the holders of other indenture securities in such manner that
the Trustee, such Holders and the holders of other indenture securities
realize, as a result of payments from such special account and payments of
dividends on claims filed against the Company in bankruptcy or receivership
or in cases or proceedings for reorganization or for any related or similar
purpose pursuant to the federal Bankruptcy Code or other applicable federal
or state law, the same percentage of their claims. The percentage referred
to in the preceding sentence shall be determined before crediting to the
claim of the Trustee anything on account of the receipt by it from the
Company of the funds and property in such special account and before
crediting to the claims of the Trustee, the Holders of such Securities, the
Holders of the Coupons, if any, appertaining thereto and the holders of
other indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in cases or proceedings for reorganization or
for any related or similar purpose pursuant to the federal Bankruptcy Code
or other applicable federal or state law, but after crediting thereon
-60-
<PAGE> 67
receipts on account of the indebtedness represented by their claims from
all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect
to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or in cases or
proceedings for reorganization or for any related or similar purpose
pursuant to the federal Bankruptcy Code or other applicable federal or
state law, whether such distribution is made in cash, securities or other
property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or cases or proceedings for reorganization or for
any related or similar purpose is pending shall have jurisdiction (i) to
apportion among the Trustee, the Holders of such Securities, the Holders of
the Coupons, if any, appertaining thereto and the holders of other
indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof,
or (ii) in lieu of such apportionment in whole or in part, to give the
provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee, the Holders of such
Securities, the Holders of the Coupons, if any, appertaining thereto and
the holders of other indenture securities with respect to their claims, in
which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as
security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee that has resigned or been removed with respect to any
series of the Securities after the beginning of such three-month period
shall be subject to the provisions of this subsection with respect to such
series as though such resignation or removal had not occurred. If any
Trustee has so resigned or been removed before the beginning of such three-
month period, it shall be subject to the provisions of this subsection with
respect to such series if and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such
Trustee had continued as Trustee for such series, occurred after
the beginning of such three-month period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
-61-
<PAGE> 68
(b) There shall be excluded from the operation of subsection (a) of
this Section 9.12 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the
purpose of preserving any property which shall at any time be
subject to the lien of this Indenture or of discharging tax liens
or other prior liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the making thereof
is given to the Holders of the applicable series of Securities
and the Holders of the Coupons, if any, appertaining thereto, at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of transfer agent, registrar, custodian, paying
agent, fiscal agent or depositary, trustee under an indenture, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction as
defined in subsection (c) of this Section 9.12;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of
the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations
which fall within the classification of self-liquidating paper as
defined in subsection (c) of this Section 9.12.
(c) For the purposes of this Section 9.12 only:
(1) The term "default" means any failure to make payment in
full of the principal of, or interest on, any of the Securities
of the applicable series or upon the other indenture securities
when and as such principal or interest becomes due and payable.
(2) The term "other indenture securities" means securities
upon which the Company is an obligor (as
-62-
<PAGE> 69
defined in the Trust Indenture Act of 1939) that are outstanding under
any other indenture (i) under which the Trustee is also trustee;
(ii) which contains provisions substantially similar to the provisions
of this Section, and (iii) under which a default exists at the time of
the apportionment of the funds and property held in such special
account.
(3) The term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and
payable upon demand.
(4) The term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of or lien
upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
(5) The term "Company" means any obligor upon the
Securities.
Section 9.13 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, upon a Company Request, there
shall be an authenticating agent (the "Authenticating Agent") appointed,
for such period as the Company shall elect, by the Trustee for such series
of Securities to act as its agent on its behalf and subject to its
direction in connection with the authentication and delivery of each series
of Securities for which it is serving as Trustee. Securities of each such
series authenticated by such Authenticating Agent shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. For all purposes of this
Indenture (except in the case of original issuance and the issuance of
Securities in replacement of lost, stolen, mutilated or destroyed
Securities), the authentication and delivery of Securities by any
Authenticating Agent pursuant to this Section 9.13 shall be deemed to be
the authentication and delivery of such Securities by the Trustee, and
whenever this Indenture requires (except in the case of original issuance
and the issuance of Securities in replacement of lost, stolen, mutilated or
destroyed Securities)
-63-
<PAGE> 70
that the Trustee shall authenticate and deliver Securities, such
authentication and delivery by an Authenticating Agent shall be deemed to
be authentication and delivery by the Trustee. Such Authenticating Agent
shall at all times be a corporation organized and doing business under the
laws of the United States or of any state thereof, authorized under such
laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination
by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of Securities for which
it served as Authenticating Agent without the execution or filing of any
paper or any further act on the part of the Trustee for such series or such
Authenticating Agent. Any Authenticating Agent may at any time, and if it
shall cease to be eligible shall, resign by giving written notice of
resignation to the applicable Trustee and to the Company. The Trustee for
any series of Securities may at any time terminate the agency of any
Authenticating Agent for such series by giving written notice of
termination to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or if at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 9.13 with
respect to one or more or all series of Securities, the Trustee for such
series shall upon Company Request appoint a successor Authenticating Agent,
and the Company shall provide notice of such appointment to all Holders of
Securities of such series or any Coupons appertaining thereto in the manner
and to the extent provided in Section 14.3. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested
with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent
herein. The Trustee for the Securities of such series agrees to pay to the
Authenticating Agent for such series from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be
reimbursed for such payment subject to the provisions of Section 9.6. The
Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the
direction of the Trustee for such series.
-64-
<PAGE> 71
ARTICLE 10
CONCERNING THE HOLDERS OF SECURITIES
Section 10.1 Action by Holders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any series may take any action (including the
making of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action), the fact that at the time of
taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments
of similar tenor executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in favor
thereof at any meeting of such Holders duly called and held in accordance
with the provisions of Article 11, or (c) by combination of such instrument
or instruments and any such record of such a meeting of Holders. The
Company may set a record date for purposes of determining the identity of
Holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture, which record date shall be
the later of 30 days before the first solicitation of such consent or the
date of the most recent list of Holders furnished to the Trustee pursuant
to Section 7.1 of this Indenture before such application. If the record
date is fixed, those persons who were Holders of Securities at such record
date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be
Holders after such record date.
Section 10.2 Proof of Execution of Instruments by Holders of
Securities. Subject to the provisions of Sections 9.1, 9.2 and 11.5, proof
of the execution of any instrument by a Holder of a Security or of any
Coupon (or his agent or proxy) and proof of the holding by any person of
any of the Securities shall be sufficient if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public
or other officer authorized to take acknowledgments of deeds that
the person executing such instrument acknowledged to him the
execution thereof or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer.
Where such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such
corporation, association or partnership or by any other person
acting in a representative capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
-65-
<PAGE> 72
The ownership of Registered Securities of any series shall be proved
by the Securities Register for such series or by a certificate of the
Securities Registrar for such series; the ownership of Unregistered
Securities of any series and Coupons shall be proved by proof of possession
reasonably satisfactory to the Trustee.
The record of any Holders' meeting shall be proved in the manner
provided in Section 11.6.
Section 10.3 Persons Deemed Owners. The Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name any
Registered Security is registered as the owner of such Registered Security
for the purpose of receiving payment of principal of, premium, if any, and
(subject to Section 3.8), if such Registered Security is a Fully Registered
Security, interest, if any, on, such Registered Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither
the Company or the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary. The Company, the Trustee and
any agent of the Company or the Trustee may treat the Holder of any
Unregistered Security and the Holder of any Coupon, whether or not the
Security to which such Coupon appertained be registered, as the absolute
owner of such Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes whatsoever whether
or not such Security or Coupon be overdue, and neither the Company, the
Trustee, any Paying Agent nor any Security Registrar shall be affected by
notice to the contrary. All such payments so made to any Holder for the
time being, or upon his order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon such Security or Coupon.
Section 10.4 Revocation of Consents; Future Holders Bound. At any
time before (but not after) the evidencing to the Trustee, as provided in
Section 10.1, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Securities specified in this Indenture
in connection with such action, any Holder of a Security, the number,
letter, or other distinguishing symbol of which is shown by the evidence to
be included in the Securities the Holders of which have consented to such
action, may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 10.2, revoke such
action so far as concerns such Security. Otherwise, any such action taken
by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and any
Coupon appertaining thereto and of any Securities and Coupons issued in
exchange or substitution therefor, whether or not any notation in regard
thereto is made upon such Security or Coupons or such other Security or
Coupons.
-66-
<PAGE> 73
ARTICLE 11
HOLDERS' MEETINGS
Section 11.1 Purposes of Meetings. A meeting of Holders of
Securities of any or all series may be called at any time and from time to
time pursuant to the provisions of this Article 11 for any of the following
purposes:
(1) to give any notice to the Company or to the Trustee for
the Securities of such series, or to give any directions to the
Trustee for such series, or to consent to the waiving of any
default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to any of the
provisions of Article 8;
(2) to remove the Trustee for such series and nominate a
successor Trustee pursuant to the provisions of Article 9;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 12.1(g); or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal
amount of the Securities of any one or more or all series, as the
case may be, under any other provision of this Indenture or under
applicable law.
Section 11.2 Call of Meetings by Trustee. The Trustee for the
Securities of any series may at any time call a meeting of Holders of
Securities of such series to take any action specified in Section 11.1, to
be held at such time and at such place as the Trustee for such series shall
determine. Notice of every meeting of the Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given to
Holders of Securities of such series in the manner and to the extent
provided in Section 14.3. Such notice shall be given not less than 20 nor
more than 90 days before the date fixed for the meeting.
Section 11.3 Call of Meetings by Company or Holders. If at any time
the Company or the Holders of at least 10% in aggregate principal amount of
the Outstanding Securities of any or all series, as the case may be, shall
have requested the Trustee for such series to call a meeting of Holders of
Securities of any or all series, as the case may be, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee for such series shall not have given the notice of
such meeting within 20 days
-67-
<PAGE> 74
after receipt of such request, then the Company or such Holders may
determine the time and the place for such meeting and may call such meeting
to take any action authorized in Section 11.1, by giving notice thereof as
provided in Section 11.2.
Section 11.4 Qualifications for Voting. To be entitled to vote at
any meeting of Holders, a person shall be (a) a Holder of one or more
Securities with respect to which such meeting is being held or (b) a person
appointed by an instrument in writing as proxy by such Holder. The only
persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee for the Securities of the
series with respect to which such meeting is being held and its counsel and
any representatives of the Company and its counsel.
Section 11.5 Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee for the Securities of any series may make such
reasonable regulations as it may deem advisable for any meeting of Holders
of the Securities of such series, in regard to proof of the holding of
Securities of such series and of the appointment of proxies, and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall determine to be necessary or advisable.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of the Securities of such series as provided in
Section 11.3, in which case the Company or the Holders calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be
elected by the vote of the holders of a majority in principal amount of the
Securities represented at the meeting.
Subject to the proviso in the definition of "Outstanding," at any
meeting each Holder of Securities with respect to which such meeting is
being held (or proxy therefor) shall be entitled to one vote for each 1,000
(in the currency or currency unit in which such Securities are denominated)
principal amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in such definition of
"Outstanding") of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any such
Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him
or instruments in writing duly designating him as the person to vote on
behalf of other Holders of such series. At any meeting of Holders, the
presence of persons holding or repre-
-68-
<PAGE> 75
senting Securities with respect to which such meeting is being held in
an aggregate principal amount sufficient to take action on the business for the
transaction of which such meeting was called shall constitute a quorum, but, if
less than a quorum is present, the persons holding or representing a majority
in aggregate principal amount of such Securities represented at the meeting may
adjourn such meeting with the same effect, for all intents and purposes, as
though a quorum had been present. Any meeting of Holders of Securities with
respect to which a meeting was duly called pursuant to the provisions of
Section 11.2 or Section 11.3 may be adjourned from time to time by the holders
of a majority in principal amount of the Securities represented at the meeting,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
Section 11.6 Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is
being held shall be by written ballots on which shall be subscribed the
signatures of such Holders or of their representatives by proxy and the
serial number or numbers of the Securities held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to the
record the original reports of the inspectors of votes on any vote by
ballot taken at such meeting and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting
and showing that notice was mailed as provided in Section 11.2. The record
shall show the serial numbers of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting, and one
of the duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 11.7 No Delay of Rights by Meeting. Nothing contained in
this Article 11 shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Holders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders under any of the provisions of this Indenture or
of the Securities of any series.
-69-
<PAGE> 76
ARTICLE 12
SUPPLEMENTAL INDENTURES
Section 12.1 Supplemental Indentures. The Company and the Trustee
for the Securities of any or all series may from time to time and at any
time enter into an indenture or indentures supplemental hereto for one or
more of the following purposes:
(a) if deemed appropriate by the Company or required by
law, to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and
obligations of the Company under the Indenture and the
Securities;
(b) to add to the covenants of the Company such further
covenants, restrictions or conditions for the protection of the
Holders of all or any series of Securities and the Coupons, if
any, appertaining thereto as its Board of Directors and the
Trustee for such series shall consider to be necessary or
advisable for the protection of the Holders of such Securities;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture that
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make
such other provisions in regard to matters or questions arising
under this Indenture that shall not be inconsistent with the
provisions of this Indenture and that shall not adversely affect
the interests of the Holders of any Securities or the Coupons, if
any, appertaining thereto in any material respect;
(d) to establish the form or terms of Securities of any
series and the Coupons, if any, appertaining thereto as permitted
by Section 3.1;
(e) to permit payment in the United States of principal,
premium or interest on Unregistered Securities or of interest on
Coupon Securities;
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series or to add to or change any of
the provisions of this Indenture necessary to provide for or
facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 9.10;
or
-70-
<PAGE> 77
(g) if and to the extent authorized by the consent
(evidenced as provided in Section 10.1) of the Holders of at
least a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental
indenture, to make such other changes in or additions to or
eliminations from the Indenture as such Holders and the Company
may deem necessary or advisable; provided, however, that no such
supplemental indenture shall (i) without the consent of the
Holder of each Outstanding Security of each such series affected
thereby:
(1) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Security of such
series, or reduce the principal amount thereof or the
premium, if any, or the rate of interest, if any, thereon or
change the Place of Payment, or the currency or currency
unit in which any Security of such series or any premium or
interest therein is payable, or reduce the amount of the
principal of an Original Issue Discount Security that would
be due and payable upon an acceleration of the maturity
thereof pursuant to Section 8.1 or adversely affect the
right of repayment, if any, at the option of the Holder, or
impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption
Date); or
(2) reduce the requirements of Section 11.5 for quorum
or voting, or reduce the percentage in principal amount of
the Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for
any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences provided for in this Indenture; or
(3) modify any of the provisions of this Section 12.1
or Section 6.3, except to increase any such percentage or to
provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the
Holders of each Security of such series affected thereby;
or (ii) modify, without the written consent of the Trustee, the
rights, duties or immunities of the Trustee.
-71-
<PAGE> 78
It shall not be necessary for the consent of the Holders under this
Section 12.1 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Any such supplemental indenture, and this Indenture as so
supplemented, shall conform to the requirements of the Trust Indenture Act
of 1939, as amended and in force at the date of execution of such
supplemental indenture.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture (a) that has expressly been included
solely for the benefit of one or more particular series of Securities and
the Coupons, if any, appertaining thereto, or (b) that modifies the rights
of the Holders of Securities of such series or any Coupons appertaining
thereto with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities
of any other series or any Coupons appertaining thereto.
The Trustee with respect to any series of Securities affected by such
supplemental indenture is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but
such Trustee shall not be obligated to enter into any such supplemental
indenture which affects such Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Section 12.2 Notice of Supplemental Indenture. Promptly after the
execution by the Company and the appropriate Trustee of any supplemental
indenture pursuant to Section 12.1(g), the Company shall notify as provided
in Section 12.1(g) all Holders of any series of Securities and of any
Coupons appertaining thereto affected by such supplemental indenture as to
the general terms and substance of such supplemental indenture.
Section 12.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article 12,
this Indenture shall be, and shall thereafter be deemed to be, modified and
amended in accordance therewith, but only with regard to the Securities of
each series affected by such supplemental indenture, and the rights,
limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee for the Securities of such series, the Company and
Holders of any Securities of such series or of any Coupons appertaining
thereto shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture shall be, and shall
thereafter be deemed to be, part of the terms and conditions of this
Indenture for any and all purposes with regard to the Securities of such
series and of any Coupons appertaining thereto.
-72-
<PAGE> 79
Section 12.4 Notation on Securities and Coupons. Securities of any
series (including any Coupons appertaining thereto) affected by any
supplemental indenture that are authenticated and delivered after the
execution of such supplemental indenture pursuant to the provisions of this
Article 12 may bear a notation in form approved by the Trustee for such
series as to any matter provided for in such supplemental indenture. If
the Company or the Trustee shall so determine, new Securities of any series
and any Coupons appertaining thereto so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared by the Company, authenticated by the Trustee and delivered
in exchange for the Securities of such series and any Coupons appertaining
thereto then Outstanding.
Section 12.5 Issuance of Securities by Successor Corporation. If the
Company shall be consolidated with or merged into any other corporation or
corporations, or shall convey or transfer all or substantially all its
property as an entirety, the successor corporation formed by such
consolidation or into which the Company shall have been merged or which
shall have received such conveyance or transfer, upon causing the
supplemental indenture referred to in Section 12.1(a) to be executed and
delivered, shall succeed to and be substituted for the Company with the
same effect as if it had been named herein as the party of the first part
and in all of the Securities and the Coupons, if any, appertaining thereto
as obligor. Thereupon and thereafter, such successor corporation may cause
to be executed, either in its own name or in the name of Intel Corporation,
or delivered to the appropriate Trustee for authentication, any or all of
the Securities and any Coupons appertaining thereto issuable hereunder.
Upon the order of such successor corporation in lieu of the Company, or
subject to all the terms, conditions and restrictions prescribed in this
Indenture, the Trustee for the Securities of the appropriate series shall
authenticate and delivery any Securities of such series and any Coupons
appertaining thereto which shall have been previously executed and
delivered by the Company to the Trustee for authentication, and any
Securities and Coupons appertaining thereto which such successor
corporation shall thereafter, in accordance with the provisions of this
Indenture, cause to be executed and delivered to the Trustee for such
purpose. Changes in phraseology and form (but not in substance) may be
made in such Securities and Coupons that are appropriate in view of such
consolidation or merger or conveyance or transfer. All the Securities and
Coupons, when issued by such successor corporation shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
and the Coupons appertaining thereto theretofore or thereafter issued, as
though all of such Securities and Coupons had been issued as of the date of
the execution hereof.
-73-
<PAGE> 80
ARTICLE 13
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 13.1 Satisfaction and Discharge. This Indenture shall cease
to be of further effect with respect to a certain series (except as to any
rights of registration of transfer or exchange of Securities herein
expressly provided for) if the Company has paid or caused to be paid all
sums payable by the Company hereunder with regard to such series and if:
(a) the Company shall deliver to the Trustee for the
Securities of such series for cancellation all Securities of all
series and the Coupons, if any, appertaining thereto for which
such Trustee is Trustee theretofore authenticated (other than any
Securities of such series and any Coupons that shall have been
destroyed, lost or stolen) and not theretofore cancelled, or
(b) all the Securities of all such series and the Coupons,
if any, appertaining thereto not theretofore cancelled or
delivered to the applicable Trustee for cancellation shall have
become due and payable, or are by their terms to become due and
payable within one year, or are to be called for redemption
within one year under arrangement satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit
with the Trustee as trust funds the entire amount sufficient (or
obligations of or guaranteed as to principal and interest by, the
United States of America, which shall not contain provisions
permitting the redemption thereof at the option of the issuer
thereof, the principal of, and interest on which due, and without
any reinvestment thereof, will provide moneys that, together with
the moneys, if any, deposited with or held by the Trustee or any
Paying Agent at the same time, shall be sufficient) to pay at
maturity or upon redemption all of the Securities of all such
series and the Coupons, if any, appertaining thereto (other than
any Securities and Coupons that shall have been destroyed, lost
or stolen and in lieu of or substitution for which other
Securities and Coupons shall have been authenticated and
delivered) not theretofore cancelled or delivered to the Trustee
for cancellation, including principal due or to become due to
such date of maturity or Redemption Date, as the case may be.
Any cash received from such principal or interest payments on such
obligations deposited with the Trustee as described in paragraph (b) above,
if not then needed for such purpose, shall, to the extent practicable, be
reinvested in obligations of the
-74-
<PAGE> 81
type described in paragraph (b) above maturing at times and in amounts
sufficient to pay when due the principal of, and interest or premium, if
any, to become due on, Securities on and prior to such redemption date or
maturity date thereof, as the case may be, and interest earned from such
reinvestments shall be paid to the Company, as received by the Trustee,
free and clear of any trust, lien or pledge.
Upon satisfaction of the above requirements, and upon receipt of a
written request from the Company, the Trustee shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture
with respect to all such series (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly
provided for). The written request from the Company referred to in the
preceding sentence shall be accompanied by an Officers' Certificate
complying with the provisions of Section 7.5, stating that all conditions
precedent relating to the satisfaction and discharge of the Indenture with
respect to all such series (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly
provided for) have been complied with, and an Opinion of Counsel, complying
with the provisions of Section 7.5, stating that in the opinion of such
counsel such conditions precedent have been complied with. Thereafter, the
Company shall reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection with this
Indenture or the Securities.
Section 13.2 Application of Moneys. All moneys deposited with the
Trustee pursuant to Section 13.1 shall be held in trust by the Trustee and
applied by it to the payment, either directly or through any Paying Agent
for such series (including the Company acting as its own Paying Agent), to
the Holders of the particular Securities and the Coupons, if any,
appertaining thereto for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due and to become due
thereon for principal, and premium and interest, if any.
Section 13.3 Repayment of Moneys by Paying Agents. Except as
provided in Section 13.4, upon the satisfaction and discharge of this
Indenture with respect to the Securities of any series and the Coupons, if
any, appertaining thereto all moneys with respect to such series then held
by any Paying Agent for such series under the provisions of this Indenture
shall, upon demand of the Company, be repaid to it and thereupon such
Paying Agent shall be released from all further liability with respect to
such moneys.
Section 13.4 Unclaimed Moneys. Any moneys deposited with the Trustee
for the Securities of any series and the Coupons, if any, appertaining
thereto for the payment of the principal of, and premium or interest, if
any, on, Securities of such series and the Coupons, if any, appertaining
thereto and which shall not be applied but shall remain unclaimed by the
Holders of
-75-
<PAGE> 82
Securities of such series and the Coupons, if any, appertaining thereto
under applicable law shall be transferred by the Trustee to the appropriate
Persons in accordance with applicable laws. Thereafter, the Holder of any
such Securities or Coupons entitled to receive such payment shall look only
to such Persons for the payment thereof.
ARTICLE 14
MISCELLANEOUS PROVISIONS
Section 14.1 Limitation of Individual Liability. No recourse under
or upon any obligation, covenant or agreement of this Indenture, or of any
Security or Coupon, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise. It is expressly understood that
this Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to,
or is or shall be incurred by, the incorporators, stockholders, officers or
directors, as such, of the Company or of any successor corporation, or any
of them, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or Coupons or implied therefrom.
Any such personal liability of any nature, either at common law or in
equity or by constitution or statute, of, and all such rights and claims
against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or Coupons or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities and Coupons, if any.
Section 14.2 Successors. All the covenants, stipulations, promises
and agreements contained in this Indenture by or in behalf of the Company
shall bind its successors and assigns, whether so expressed or not.
Section 14.3 Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (1) if any of the Securities
affected by such event are Fully Registered Securities, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed by first-class mail, postage prepaid, to such Holders as
their names and addresses appear in the Securities Register within the time
prescribed, and (2) if any of the Securities
-76-
<PAGE> 83
affected by such event are Unregistered Securities or Coupon Securities,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed by first-class mail, postage prepaid, to
such Holders in the manner and to the extent provided in Section 7.4(c) and
if published in an Authorized Newspaper or Newspapers in such city or
cities as may be provided elsewhere in this Indenture or specified as
contemplated by Section 3.1 on a Business Day at least twice (the first
such publication to be not earlier than the earliest date and not later
than the latest date prescribed for the giving of such notice). Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action
taken in reliance on such waiver. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders, and any notice which is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given. If, by reason of the suspension of publication of any
Authorized Newspapers or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Unregistered Securities
or of Coupons as provided above, then notification to Holders of
Unregistered Securities or of Coupons given with the approval of the
Trustee shall constitute sufficient notice to such Holders for every
purpose hereunder.
Section 14.4 Addresses for Notices. Any notice or demand that by any
provision of this Indenture is required or permitted to be given or served
by the Trustee for the Securities of any series or by the Holders of
Securities of any series or of any Coupons appertaining thereto on the
Company may be sent by registered mail, hand delivered or sent by overnight
courier, addressed (until another address is filed by the Company with the
Trustee) as follows: Intel Corporation, Attention: Treasurer, 2200 Mission
College Boulevard, Santa Clara, CA 95052. Any notice, direction, request
or demand by any Holder of Securities of any series to or upon the Trustee
for such series or of any Coupons appertaining thereto shall be deemed to
have been sufficiently given or made, for all purposes, if given or made at
the Corporate Trust Office of the Trustee, and, in respect of Unregistered
Securities or Coupons, at the corporate trust office of the Trustee
referred to in Section 6.2(1). Any notice or demand required or permitted
under this Indenture shall be in the English language, except that any
published notice may be in the official language of the country of
publication.
Section 14.5 Cross References. All references herein to "Articles,"
"Section" and other subdivisions are to the
-77-
<PAGE> 84
corresponding Articles or other subdivisions of this Indenture; and the
words "herein," "hereof," "hereby," "hereunder," "hereinbefore" and
"hereinafter" and other words of similar purport refer to this Indenture
generally and not to any particular Article, Section, or other subdivision
hereof.
Section 14.6 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 14.7 Headings Not To Affect Construction. The headings of
the Articles, Sections and other subdivisions hereof are for convenience
only and shall not affect the construction hereof.
Section 14.8 Trust Indenture Act To Govern. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act
that is required under such Act to be a part of and govern this Indenture,
the latter provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that may be
so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
Section 14.9 Legal Holidays. In any case where the date of maturity
of interest on or principal of or premium, if any, on the Securities or
Coupons or the date fixed for redemption or repayment of any Security shall
not be a Business Day at any Place of Payment with respect to Securities of
that series, then (notwithstanding any other provisions of this Indenture
or of the Security or Coupons) payment of such interest on or principal of
or premium, if any, on the Securities and Coupons need not be made on such
date in such Place of Payment but may be made on the next succeeding
Business Day in such Place of Payment with the same force and effect as if
made on the date of maturity or the date fixed for redemption or repayment,
as the case may be, and no interest shall accrue for the period from and
after such date of maturity or date fixed for redemption or repayment.
Section 14.10 Governing Law. This Indenture and each Security for
all purposes shall be governed by and construed in accordance with the laws
of the State of California, unless with respect to Securities of a series
it is provided that the laws of another jurisdiction shall govern.
-78-
<PAGE> 85
ARTICLE 15
SUBORDINATION OF SECURITIES
Section 15.1 Subordination. Notwithstanding anything to the contrary
in this Indenture or the Securities of any series, or any Coupons
appertaining thereto, the Company, for itself, its successors and assigns,
covenants and agrees and each Holder of the Securities of any series by his
acceptance thereof likewise covenants and agrees that the payment of
principal, premium, if any, and interest in respect of the indebtedness
issued pursuant to this Indenture shall be junior and subordinate and
subject in right of payment to all Senior Indebtedness as provided in this
Article 15.
As used in this Article 15, "Senior Indebtedness" shall mean (a) all
indebtedness of the Company for money borrowed (including purchase-money
obligations with an original maturity in excess of one year) or evidenced
by debentures, notes or other corporate debt securities or similar
instruments issued by the Company; (b) indebtedness or obligations of the
Company constituting a guarantee of indebtedness of or an obligation of
others of the type referred to in (a) above; or (c) any modification,
extension, renewal or refunding of any of the indebtedness or obligations
referred to in (a) or (b) above, unless, in the case of any particular
indebtedness or obligation, modification, extension, renewal or refunding,
under the express provisions of the instrument creating or evidencing the
same, or pursuant to which the same is outstanding, such indebtedness or
other obligation or such modification, extension, renewal or refunding
thereof is not superior in right of payment to the Securities.
Section 15.2 Acceleration of Securities. If any of the Securities of
any series are declared or become due and payable before their Stated
Maturity because of the occurrence of an Event of Default hereunder (under
circumstances when the provisions of Section 15.4 shall not be applicable),
then all Senior Indebtedness shall be paid in full before any payment or
distribution of any character, whether in cash, securities or other
property (whether in respect of principal, premium, if any, or interest)
shall be made in respect of the Securities of such series.
Section 15.3 Default on Senior Indebtedness. Unless and until all
Senior Indebtedness shall have been paid in full in accordance with its
terms, the Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, make or agree to make:
(a) any payment or prepayment (in cash or property, by set-
off or otherwise), direct or indirect, of principal, premium, if
any, or interest in respect of any of the Securities (or any
-79-
<PAGE> 86
indebtedness subordinated to the Securities), and no such payment
shall be due or payable or shall be accepted by any Holder of any such
Securities, or
(b) any redemption, purchase or other acquisition, direct
or indirect, of any Securities (or any indebtedness subordinated
to the Securities), and no Holder of any Securities shall be a
party to any such redemption, purchase or other acquisition, or
(c) any payment on account of a sinking fund for any of the
Securities (except sinking-fund payments made in Securities
acquired by the Company before the occurrence of an event of
default with respect to Senior Indebtedness), if an event of
default with respect to any Senior Indebtedness (as defined in
any agreement pursuant to which Senior Indebtedness shall have
been issued) shall have occurred and be continuing or if any such
action would constitute an event of default on the part of the
Company in respect of any Senior Indebtedness or any instrument
or agreement relating thereto and such event of default shall be
continuing.
As used in this Article 15, "Subsidiary" shall mean any corporation
(or any other person treated by the Company for its accounting purposes as
a corporation) of which at least a majority of the outstanding stock having
by the terms thereof ordinary voting power to elect a majority of the board
of directors of such corporation (irrespective of whether or not at the
time stock of any class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by the Company, or by any
one or more Subsidiaries, or by the Company and one or more Subsidiaries.
Section 15.4 Insolvency, etc. In the event of (i) any insolvency or
bankruptcy proceeding, or any receivership, liquidation or other similar
proceeding in connection therewith, relative to the Company or its
property, or (ii) any proceeding for voluntary liquidation, dissolution or
other winding-up of the Company, whether or not involving insolvency or
bankruptcy, or (iii) any assignment for the benefit of creditors, or
(iv) any distribution, division, marshalling or application of any of the
properties or assets of the Company or the proceeds thereof, to creditors,
voluntary or involuntary, and whether or not involving legal proceedings,
then in any such event:
(a) all Senior Indebtedness shall first be paid in full
before any payment or distribution of any character, whether in
cash, securities or other property, shall be made by the Company
in respect of any of the Securities;
-80-
<PAGE> 87
(b) all principal of and premium, if any, and interest on
the Securities shall (notwithstanding the terms of Section 15.3)
become due and payable, and any payment or distribution of any
character, whether in cash, securities or other property, which
would otherwise (but for the terms hereof) be payable or
deliverable by the Company in respect of any of the Securities
(including any payment or distribution in respect of any of the
Securities by reason of any other indebtedness of the Company
being subordinated to the Securities), shall be paid or delivered
directly to the holders of Senior Indebtedness at the time
outstanding (or their respective representatives), or to the
trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the respective aggregate
amounts remaining unpaid thereon, until all Senior Indebtedness
shall have been paid in full (but subject to the power of a court
of competent jurisdiction to make other equitable provision
reflecting the rights of the Senior Indebtedness and the holders
thereof with respect to the Securities by lawful plan of
reorganization under applicable bankruptcy law), and the Holders
of the Securities at the time outstanding irrevocably authorize,
empower and direct all receivers, trustees, liquidators,
conservators and others having authority in the premises to
effect all such payments and deliveries;
(c) the Holders of the Securities at the time outstanding
irrevocably authorize and empower (without imposing any
obligation on) each holder of Senior Indebtedness at the time
outstanding and such holder's representatives to demand, sue for,
collect and receive such holder's ratable share of all such
payments and distributions and to receipt therefor, and to file
and prove all claims therefor and take all such other action
(including the right to vote such Senior Indebtedness holder's
ratable share of the Securities) in the name of the Holders of
the Securities or otherwise, as such Senior Indebtedness holder
or such holder's representatives may determine to be necessary or
appropriate for the enforcement of this Section 15.4; and
(d) the Holders of the Securities shall execute and deliver
to each holder of Senior Indebtedness and such holder's
representatives all such further instruments confirming the above
authorization, and all such powers of attorney, proofs of claim,
assignments of claim and other instruments, and shall take all such
other action as may be requested by such holder or such holder's
representatives, in order to
-81-
<PAGE> 88
enable such holder to enforce all claims upon or in respect of such
holder's ratable share of the Securities.
Section 15.5 Payments and Distributions Received. If any payment or
distribution of any character (whether in cash, securities or other
property) or any security shall be received by the Trustee or any Holder of
any of the Securities in contravention of any of the terms hereof and
before all Senior Indebtedness shall have been paid in full, such payment
or distribution or security shall be held in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness at the time outstanding (or their respective
representatives), or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, for application to the payment of all Senior Indebtedness
remaining unpaid, ratably according to the respective aggregate amounts
remaining unpaid thereon, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee (pursuant
to Section 15.4) or any Holder of any of the Securities to endorse or
assign any such payment, distribution or security, each holder of Senior
Indebtedness and each such holder's representative is hereby irrevocably
authorized to endorse or assign the same.
Section 15.6 Excess Senior Indebtedness Payment, Subrogation, etc.
If cash, securities or other property otherwise payable or deliverable to
the Holders of the Securities shall have been applied, pursuant to Section
15.4 or 15.5, to the payment of Senior Indebtedness in full, then in such
case, the Holders of the Securities (a) shall be entitled to receive from
the holders of the Senior Indebtedness at the time outstanding any payments
or distributions received by such holders of Senior Indebtedness in excess
of the amount sufficient to pay all Senior Indebtedness in full, and
(b) shall be subrogated to any rights of the holders of Senior Indebtedness
to receive all further payments or distributions applicable to the Senior
Indebtedness, until all principal of and premium, if any, and interest on
the Securities shall have been paid in full. No such payments or
distributions received by the Holders of the Securities, by reason of such
subrogation, of cash, securities or other property, which otherwise would
be paid or distributed to the holders of Senior Indebtedness, shall, as
between the Company and its creditors (other than the holders of the Senior
Indebtedness), on the one hand, and the Holders of the Securities, on the
other hand, be deemed to be a payment by the Company to or on account of
the Securities.
Section 15.7 No Security. So long as any of the Senior Indebtedness
shall not have been paid in full, the Company shall not, and shall not
permit any of its Subsidiaries to, give and the Holders of the Securities
shall not demand, accept or receive any security, direct or indirect, for
any Securities.
-82-
<PAGE> 89
Section 15.8 Obligations Not Impaired. Nothing contained in this
Article 15 or elsewhere in this Indenture or in the Securities is intended
to or shall impair, as between the Company and the Holder of any
Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the holder thereof the principal of, premium, if
any, and interest thereof as and when the same shall become due and payable
in accordance with the terms thereof, or is intended to or shall affect the
relative rights of the Holders of the Securities and creditors of the
Company other than the holders of the Senior Indebtedness, or is intended
to or shall prevent the Trustee or the Holder of any Securities, upon the
occurrence of an Event of Default, from exercising all rights, powers and
remedies otherwise provided herein or permitted by applicable law, all
subject to the rights, if any, of the holders of Senior Indebtedness under
this Article 15 to receive cash, securities or other property otherwise
payable or deliverable to the Holders of the Securities. Upon any
distribution of assets of the Company referred to in this Article 15, the
Trustee, subject to the provisions of Section 9.1, and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of
the liquidating trustee or agent or other person making any distribution to
the Trustee or to the Holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this
Article 15.
Section 15.9 Subordination Not Affected, etc. The terms of this
Article 15, the subordination effected hereby and the rights of the present
or future holders of the Senior Indebtedness, shall not be affected by
(a) any amendment of or addition or supplement to any Senior Indebtedness
or any instrument or agreement relating thereto, (b) any exercise or
nonexercise of any right, power or remedy under or in respect of any Senior
Indebtedness or any instrument or agreement relating thereto, (c) any sale,
exchange, release or other transaction affecting all or any part of the
property at any time pledged or mortgaged to secure, or however securing,
Senior Indebtedness, (d) any waiver, consent, release, indulgence,
extension, renewal, modification, delay, noncompliance or other action,
inaction or omission, in respect of any Senior Indebtedness or this
Indenture or any instrument or agreement relating thereto, (e) any act or
failure to act on the part of the Company, or (f) any act or failure to
act, in good faith, by any such holder, whether or not any Holder of any
Securities shall have had notice or knowledge of any of the foregoing.
Section 15.10 Changes, Waivers, etc. Neither this Article 15 nor any
terms hereof may be changed or waived except
-83-
<PAGE> 90
with the prior written consent of the holders of all of the Senior
Indebtedness at the time outstanding. Neither the Securities nor any term
thereof may be changed, waived or canceled in any manner that would have
any adverse effect upon the rights of the holders of the Senior
Indebtedness at the time outstanding.
Section 15.11 Payment in Full of Senior Indebtedness. For all
purposes of this Article 15, Senior Indebtedness shall not be deemed to
have been paid in full unless (a) the holders thereof (or their duly
authorized representatives) shall have received cash or readily marketable
securities, taken at their then market value, equal to the amount of Senior
Indebtedness at the time outstanding, or (b) other equitable provisions
have been effected by action of a court of competent jurisdiction or
agreement among the holders of Senior Indebtedness.
Section 15.12 Trustee Entitled To Assume Payments Not Prohibited in
Absence of Notice. The Trustee shall not at any time be charged with
knowledge of the existence of any facts that would prohibit the making of
any payment of moneys to or by the Trustee, unless and until the Trustee
shall have received written notice thereof from the Company or from one or
more holders of Senior Indebtedness or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Article 9, shall be entitled to assume that no such facts
exist.
Section 15.13 Application by Trustee of Moneys Deposited With It.
Anything in this Indenture to the contrary notwithstanding, any deposit of
moneys by the Company with the Trustee or any payment agent (whether or not
in trust) for the payment of the principal of or premium, if any, or
interest on any Securities shall be subject to the provisions of this
Article 15 except that, if prior to the date on which by the terms of this
Indenture any such moneys may become payable for any purpose (including the
payment of either the principal of or the interest or premium, if any, on
any Securities) the Trustee shall not have received with respect to such
moneys the notice provided for in Section 15.12, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such moneys and to apply the same to the
purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such date.
Section 15.14 Securityholders Authorize Trustee To Effectuate
Subordination of Securities. Each Holder of the Securities by his
acceptance thereof authorizes and expressly directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article 15 and appoints the Trustee his
attorney-in-fact for such purpose, including taking action on behalf of the
Holders of the Securities, when required, as specified in
-84-
<PAGE> 91
Section 15.4 and including, in the event of any dissolution, winding-up,
liquidation or reorganization of the Company (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the
benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Company, the immediate filing of a claim for the
unpaid balance of its or his Securities in the form required in such
proceedings and causing such claim to be approved. If the Trustee does not
file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holder or holders of Senior Indebtedness are
hereby authorized to and have the right to file and are hereby authorized
to file an appropriate claim for and on behalf of the Holders of such
Securities.
Section 15.15 Right of Trustee To Hold Senior Indebtedness. The
Trustee shall be entitled to all of the rights set forth in this Article 15
in respect of any Senior Indebtedness at any time held by it to the same
extent as any other holder of Senior Indebtedness, and nothing in Article 9
or elsewhere in this Indenture shall be construed to deprive the Trustee of
any of its rights as such holder.
Section 15.16 Article 15 Not To Prevent Events of Default. The
failure to make a payment on account of principal, interest or sinking fund
by reason of any provision in this Article 15 shall not be construed as
preventing the occurrence of an Event of Default under Section 8.1.
-85-
<PAGE> 1
EXHIBIT 4.4
STANDARD INDENTURE PROVISIONS
INTEL OVERSEAS CORPORATION
AS ISSUER
INTEL CORPORATION
AS GUARANTOR
Dated as of October 20, 1994
<PAGE> 2
TABLE SHOWING REFLECTION IN THESE STANDARD
INDENTURE PROVISIONS OF CERTAIN PROVISIONS OF
THE TRUST INDENTURE ACT OF 1939(1)
<TABLE>
<CAPTION>
Provisions of Trust
Indenture Act of 1939 Indenture Provision
- --------------------- -------------------
<S> <C>
310(a)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.8
310(a)(3) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.7; 9.9(a)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.12(a)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.12(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1; 7.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(a)
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4(d)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
315(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(a)(1)
315(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(a)(2)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.9
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(b)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(c)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.7
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1; 8.6
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1
317(a)(1) and (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(6), (7)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.8
</TABLE>
____________________
(1) This table is not part of the Standard Indenture Provisions.
<PAGE> 3
INTEL OVERSEAS CORPORATION
STANDARD INDENTURE PROVISIONS
TABLE OF CONTENTS(2)
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.3 Form of Trustee's Certificate of Authentication by an Authenticating Agent . . . . . . . . . . . 7
Section 2.4 Securities Issuable in the Form of a Global Security . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 3 THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.1 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.2 Form and Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.3 Authentication and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.4 Execution of Securities and Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.5 Registration; Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.6 Mutilated, Destroyed, Lost or Stolen Securities or Coupons . . . . . . . . . . . . . . . . . . . 16
Section 3.7 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.8 Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.11 Currency and Manner of Payments in Respect of Securities . . . . . . . . . . . . . . . . . . . . 20
Section 3.12 Compliance with Certain Laws and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 4 REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 4.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 4.2 Notice of Redemption; Selection of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 4.3 Payment of Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
</TABLE>
____________________
(2) This Table of Contents does not constitute part of the Standard Indenture
Provisions or have any bearing upon the interpretation of any of its
terms and provisions.
-i-
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE 5 SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.2 Satisfaction of Mandatory Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . 28
Section 5.3 Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 6 CERTAIN COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 6.1 Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 6.2 Other Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 6.3 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE GUARANTOR AND THE TRUSTEE .. . . . . . . . . . . . . . . . 35
Section 7.1 Semiannual Lists of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 7.2 Preservation of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.3 Periodic Reports by Company and Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.4 Trustee's Reports to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.5 Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 8 REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.2 Collection of Indebtedness by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 8.3 Application of Moneys Collected by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 8.4 Limitation on Suits on Indenture; No Limitation on Suits on Securities . . . . . . . . . . . . . 48
Section 8.5 Remedies Cumulative; Delay Not To Impair Rights . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.6 Directions by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 8.7 Undertakings for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 8.8 Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 8.9 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 9 CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 9.1 Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 9.2 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 9.3 Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . 54
Section 9.4 May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.5 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.6 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.7 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 9.8 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 9.9 Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 9.10 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 9.11 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . 59
Section 9.12 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 9.13 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<S> <C>
ARTICLE 10 CONCERNING THE HOLDERS OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 10.1 Action by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 10.2 Proof of Execution of Instruments by Holders of Securities . . . . . . . . . . . . . . . . . . . 66
Section 10.3 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 10.4 Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE 11 HOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.1 Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.2 Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.3 Call of Meetings by Company or Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.4 Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.5 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 11.6 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 11.7 No Delay of Rights by Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE 12 SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 12.1 Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 12.2 Notice of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 12.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 12.4 Notation on Securities and Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 12.5 Issuance of Securities by Successor Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE 13 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 13.1 Satisfaction and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 13.2 Application of Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 13.3 Repayment of Moneys by Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 13.4 Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
ARTICLE 14 MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 14.1 Limitation of Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 14.2 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 14.3 Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 14.4 Addresses for Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 14.5 Cross References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 14.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 14.7 Headings Not to Affect Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 14.8 Trust Indenture Act to Govern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 14.9 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 14.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE 15 SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 15.1 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 15.2 Acceleration of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 15.3 Default on Company Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 15.4 Insolvency, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 15.5 Payments and Distributions Received . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 15.6 Excess Company Senior Indebtedness Payment, Subrogation, etc. . . . . . . . . . . . . . . . . . . 83
Section 15.7 No Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 15.8 Obligations Not Impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
</TABLE>
-iii-
<PAGE> 6
<TABLE>
<S> <C>
Section 15.9 Subordination Not Affected, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 15.10 Changes, Waivers, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 15.11 Payment in Full of Company Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 15.12 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice . . . . . . . . . . . . . 85
Section 15.13 Application by Trustee of Moneys Deposited With It . . . . . . . . . . . . . . . . . . . . . . . 85
Section 15.14 Securityholders Authorize Trustee to Effectuate Subordination of Securities . . . . . . . . . . . 86
Section 15.15 Right of Trustee to Hold Company Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . 86
Section 15.16 Article 15 Not to Prevent Events of Default or Recourse to Guarantee . . . . . . . . . . . . . . 86
ARTICLE 16 THE GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 16.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 16.2 Proceedings Against the Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 16.3 Guarantee for Benefit of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 89
ARTICLE 17 SUBORDINATION OF GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 17.1 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 17.2 Default on Guarantor Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 17.3 Insolvency, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 17.4 Payments and Distributions Received . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 17.5 Excess Guarantor Senior Indebtedness Payment, Subrogation, etc. . . . . . . . . . . . . . . . . . 92
Section 17.6 No Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 17.7 Obligations Not Impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 17.8 Subordination Not Affected, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 17.9 Changes, Waivers, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 17.10 Payment in Full of Guarantor Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 17.11 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice . . . . . . . . . . . . . 94
Section 17.12 Application by Trustee of Moneys Deposited with It . . . . . . . . . . . . . . . . . . . . . . . 95
Section 17.13 Securityholders Authorize Trustee to Effectuate Subordination of Guarantee . . . . . . . . . . . 95
Section 17.14 Right of Trustee to Hold Guarantor Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . 95
</TABLE>
-iv-
<PAGE> 7
ARTICLE 1
DEFINITIONS
Section 1.1 Certain Definitions. Except as otherwise expressly
provided or unless the context otherwise requires, the following items shall
have the meanings specified in this Section 1.1. These definitions shall be
applicable to both the singular and the plural form of the terms defined.
Except as otherwise expressly provided or unless the context otherwise
requires, terms used in this Indenture that are defined in the Trust Indenture
Act, or that are by reference in such Act defined in the Securities Act of
1933, as amended, have the meanings specified in the Trust Indenture Act and in
the Securities Act of 1933 as in force at the date of the execution of this
Indenture.
"Authenticating Agent" shall mean any authenticating agent appointed
by the Trustee pursuant to Section 9.13.
"Authorized Newspaper" shall mean a newspaper in an official language
of the country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities as may be provided elsewhere in this
Indenture or specified as contemplated by Section 3.1 with respect to the
Securities of any series the terms of which permit Unregistered Securities or
Coupon Securities. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or
in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day in such city.
"Board of Directors" when used with reference to the Company or the
Guarantor shall mean the board of directors of the Company or the Guarantor, as
the case maybe, or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the Guarantor, as the
case may be, to have been duly adopted by the Board of Directors of the Company
or the Guarantor, as the case may be, and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day," when used in connection with the name of a city, shall
mean any day other than a day on which banking institutions in such city are
authorized or required by law to close, and shall otherwise mean each day of
the week that is not a day on which banking institutions at the place where any
specified act pursuant to this Indenture is to occur are authorized or required
by law to close.
-1-
<PAGE> 8
"Commission" shall mean the Securities and Exchange Commission.
"Company" shall mean Intel Overseas Corporation, a California
corporation, until a corporation shall have become a successor pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
the successor corporation.
"Company Order" and "Company Request" shall mean a written order or
written request signed in the name of the Company by its President or a Vice
President, and by its Treasurer, Assistant Treasurer, Secretary or an Assistant
Secretary and delivered to the Trustee, with a copy to the Guarantor.
"Corporate Trust Office" shall mean the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, except that with respect to presentation of Registered Securities
for payment or for registration of transfer and exchange, presentation of
Unregistered Securities for registration and the location of the Securities
Register, "Corporate Trust Office" shall mean the office or agency of the
Trustee at which at any particular time its corporate agency business shall be
conducted.
"Coupon" shall mean any interest coupon appertaining to any Security.
"Coupon Security" shall mean any Security authenticated and delivered
with one or more Coupons appertaining thereto.
"Depositary" shall mean the entity, if any, named as the "Depositary"
pursuant to Section 3.1 and, subject to the provisions of this Indenture, shall
also include its successors and assigns.
"Dollar" shall mean the coin or currency of the United States of
America that is legal tender for the payment of public and private debts at the
time of payment.
"Event of Default": See Section 8.1.
"Exchange Rate Officer's Certificate" shall mean a telex or a
certificate setting forth (i) the applicable Official Currency Unit Exchange
Rate and (ii) the Dollar or Foreign Currency amounts of principal, if any, and
interest, if any (on an aggregate basis and on the basis of a Security having a
principal amount of 1,000 in the relevant currency unit), payable on the basis
of such Official Currency Unit Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by the Treasurer or any Assistant
Treasurer of the Company.
"Foreign Currency" shall mean a currency issued by the government of
any country other than the United States.
-2-
<PAGE> 9
"Fully Registered Security" shall mean any Security registered as to
principal and interest, if any.
"Global Security" shall mean a Security issued to evidence all or a
part of any series of Securities that is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instructions, all in accordance with this Indenture and pursuant
to a Company Order, which shall be registered as to principal and interest in
the name of the Depositary or its nominee.
"Guarantee" shall mean the guarantee of the Company's obligations
under the Securities by the Guarantor as provided in Article 16 of this
Indenture.
"Guarantor" shall mean Intel Corporation, a Delaware corporation,
until a successor corporation shall have become such pursuant to the applicable
provisions hereof, and thereafter "Guarantor" shall mean such successor
corporation.
"Holder" shall mean, with respect to a Registered Security, the Person
in whose name a particular Registered Security is registered in the Securities
Register; and with respect to an Unregistered Security or a Coupon, the bearer
thereof.
"Indenture" shall mean this instrument as originally executed, or as
it may be amended or supplemented from time to time as herein provided, and
shall include the form and terms of particular series of Securities established
as contemplated hereunder.
The term "interest" when used with respect to noninterest-bearing
Securities, means interest payable after maturity.
"Interest Payment Date" shall mean the Stated Maturity of an
installment of interest on the Securities of any series.
"Officers' Certificate" shall mean a certificate signed by the
Chairman or a Vice Chairman of the Board of Directors, or the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company or the Guarantor, as the case may be, and
delivered to the Trustee.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company or the
Guarantor.
"Original Issue Discount Security" shall mean any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 8.1.
-3-
<PAGE> 10
"Outstanding," when used with reference to Securities, shall mean, as
of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount and in the required
currency or currency unit shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Company, the
Guarantor or any other obligor on the Securities) or shall have been
set aside and segregated in trust by the Company, the Guarantor or any
other obligor on the Securities (if the Company, the Guarantor or any
other obligor on the Securities shall act as its own Paying Agent) for
the Holders of such Securities and any Coupons appertaining thereto,
provided that if such Securities are to be redeemed prior to the
Stated Maturity thereof, notice of such redemption shall have been
given as provided in Article 4, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in lieu of and in substitution for which
other Securities shall have been authenticated and delivered pursuant
to Section 3.5, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to
it that such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company, the Guarantor or any other obligor on the Securities or any
other Person directly or indirectly controlling, controlled by, or under direct
or indirect common control with the Company, the Guarantor or such other
obligor (an "Affiliate") shall be disregarded and deemed not to be Outstanding.
In determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company, the Guarantor or any other obligor on the Securities or any
Affiliate of the Company, the Guarantor or such other obligor. In determining
whether the
-4-
<PAGE> 11
Holders of the requisite principal amount of Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 8.1.
"Overdue Rate" with respect to any series of Securities shall mean the
rate so designated relating to such series as contemplated by Section 3.1.
"Paying Agent" shall mean any person authorized by the Company to pay
the principal of, or premium or interest on, any Securities on behalf of the
Company.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, shall mean the place or places where the principal of, and premium and
interest, if any, on, the Securities of such series are payable as specified
pursuant to Section 3.1.
"Redemption Date," when used with respect to any Security to be
redeemed, shall mean the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, shall mean the price, in the currency or currency unit in which such
Security is denominated or which is otherwise provided for pursuant to this
Indenture, at which it is to be redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security registered as to
principal.
"Responsible Officer," when used with respect to the Trustee, shall
mean the chairman of the board of directors, vice chairman of the board of
directors, the president, any vice president, the secretary, the treasurer, any
trust officer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" shall mean all debentures, notes or other
evidences of indebtedness authenticated and delivered under this Indenture.
-5-
<PAGE> 12
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such Security
or the Coupon, if any, representing such installment of interest as the date on
which the principal of, or premium or interest on, if any, such Security is due
and payable.
"Trustee" shall mean the Person named as the "Trustee" in the first
paragraph of this Indenture and, subject to the provisions of Article 9, shall
also include its successors and assigns. If there shall be more than one
Trustee at any one time, "Trustee" shall mean each such Trustee and shall apply
to each such Trustee only for those series of Securities with respect to which
it is serving as Trustee.
Except as provided in Section 12.1, "Trust Indenture Act" shall mean
the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act
of 1990, and as in force at the date of execution of this Indenture.
"Unregistered Security" means any Security that is not registered as
to principal.
"Yield to Maturity" means the yield to maturity, calculated at the
time of issuance of a series of Original Issue Discount Securities, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE 2
SECURITY FORMS
Section 2.1 Forms Generally. The Securities of each series, and the
Coupons, if any, to be attached thereto, shall be in substantially the form or
forms established pursuant to Section 3.1, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture. The Securities and Coupons may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with any law or with any rules made
pursuant thereto or with any rules of any securities exchange or as may be
determined by the officers executing such Securities and Coupons, as evidenced
by their execution of the Securities and Coupons.
The definitive Securities and Coupons, if any, of each series shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities and Coupons, as evidenced by their execution of such Securities and
Coupons, subject, with respect to the Securities of any series,
-6-
<PAGE> 13
to the rules of any securities exchange on which the Securities of such series
are listed.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's Certificate of Authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein provided
for under the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By _________________________________
Authorized Officer
Section 2.3 Form of Trustee's Certificate of Authentication by an
Authenticating Agent. If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee's
Certificate of Authentication by such Authenticating Agent on all Securities of
each such series shall be in substantially the following form:
This is one of the Securities of the series designated herein provided
for under the within-mentioned Indenture.
[NAME OF TRUSTEE],
as Trustee
By [NAME OF AUTHENTICATING AGENT],
Authenticating Agent
By _________________________________
Authorized Officer
Section 2.4 Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Section 3.1 that
the Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and
the Trustee shall, in accordance with Section 3.3 and the Company Order
delivered to the Trustee thereunder, authenticate and deliver, such Global
Security or Securities, which:
(i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the Outstanding Securities
of such series to be represented by such Global Security or
Securities;
-7-
<PAGE> 14
(ii) shall be registered in the name of the Depositary for
such Global Security or Securities or its nominee;
(iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction; and
(iv) shall bear a legend substantially to the following
effect:
"Unless and until it is exchanged in whole or in part for the
individual Securities represented hereby, this Global Security
may not be transferred except as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
Without limiting the foregoing, the Company, the Guarantor and the
Trustee shall have no responsibility, obligation or liability with respect to:
(x) the maintenance, review or accuracy of the records of the Depositary or of
any of its participating organizations with respect to any ownership interest
in or payments with respect to such Global Security, (y) any communication with
or delivery of any notice (including notices of redemption) with respect to the
series of Securities represented by the Global Security to any Person having
any ownership interest in such Global Security or to any of the Depositary's
participating organizations or (z) any payment made on account of any
beneficial ownership interest in such Global Security.
(b) Notwithstanding any other provision of this Section 2.4 or of
Section 3.5, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for individual Securities, a
Global Security may be transferred, in whole but not in part and in the manner
provided in Section 3.5, only to the Depositary or another nominee of the
Depositary for such Global Security, or to a successor Depositary for such
Global Security selected or approved by the Company or to a nominee of such
successor Depositary.
(c) (i) If at any time the Depositary for a Global Security
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary for the Securities
for such series shall no longer be eligible or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, the Company shall appoint a successor Depositary
-8-
<PAGE> 15
with respect to such Global Security. If a successor Depositary for such
Global Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 3.1(17) shall no longer be effective
with respect to such Global Security and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Securities of such series in exchange for such Global Security, will
authenticate and deliver individual Securities of such series of like tenor and
terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series issued or issuable in the form of
one or more Global Securities shall no longer be represented by such Global
Security or Securities. In such event, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Securities of such series in exchange in whole or in part for such
Global Security, will authenticate and deliver individual Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Security or Securities
representing such series in exchange for such Global Security or Securities.
(iii) If specified by the Company pursuant to Section 3.1
with respect to Securities issued or issuable in the form of a Global Security,
the Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of like
tenor and terms in definitive form on such terms as are acceptable to the
Company and such Depositary. Thereupon, the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depositary a new Security or Securities of the same
series of like tenor and terms and of any authorized denominations as requested
by such Person or the Depositary in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security; and (2)
to such Depositary a new Global Security of like tenor and terms and in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding
three paragraphs, the Company will execute, and the Trustee will authenticate
and deliver, individual Registered Securities in authorized denominations.
Upon the exchange of a Global Security for individual Securities, such Global
Security shall be cancelled by the Trustee. Securities issued in
-9-
<PAGE> 16
exchange for a Global Security pursuant to this Section 2.4 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the persons in whose names such Securities are so
registered.
ARTICLE 3
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more
series. There shall be established in or pursuant to the authority granted in
a resolution of the Board of Directors of the Company or established in one or
more indentures supplemented hereto, prior to the issuance of any Securities of
any series:
(1) the title of the Securities of such series (which
shall distinguish the Securities of such series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of such series pursuant to Sections 2.4,
3.5, 3.6, 3.7, 4.3 or 12.4);
(3) the date or dates on which such Securities may be
issued;
(4) the date or dates, which may be serial, on which the
principal and premium, if any, of the Securities of such series is
payable;
(5) the rate or rates, or the method of determination
thereof, at which the Securities of such series shall bear interest,
if any; the date or dates from which such interest shall accrue; the
Interest Payment Dates on which such interest shall be payable and, in
the case of Registered Securities, the record dates, if other than as
set forth in Section 3.8, for the determination of Holders to whom
interest is payable; and whether any special terms and conditions
relating to the payment of additional amounts in respect of payments
on the Securities of such series shall in the event of certain changes
in the United States federal income tax laws, apply to Unregistered
-10-
<PAGE> 17
Securities of such series or to Registered Securities of such series;
(6) the Place of Payment of such series;
(7) the provisions, if any, establishing the price or
prices at which, the period or periods within which and the terms and
conditions upon which Securities of such series may be redeemed, in
whole or in part, at the option of the Company, pursuant to any
sinking fund or otherwise, and whether any special terms and
conditions of redemption shall apply to Unregistered Securities of
such series or to Registered Securities of such series;
(8) the obligation, if any, of the Company to redeem,
purchase or repay Securities of such series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and
the price or prices, in the currency or currency unit in which the
Securities of such series are payable, at which and the period or
periods within which and the terms and conditions upon which
Securities of such series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of 1,000 and any integral
multiple thereof, in the currency or currency unit in which the
Securities of such series are denominated, the denominations in which
Securities of such series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of such series which
shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 8.1 or provable in bankruptcy pursuant to
Section 8.2;
(11) whether payment of the principal of, premium, if any,
and interest, if any, on the Securities of such series shall be with
or without deduction for taxes, assessments or governmental charges,
and with or without reimbursement of taxes, assessments or
governmental charges paid by Holders;
(12) any Events of Default with respect to the Securities
of such series, if not set forth herein;
(13) if other than the rate of interest stated in the
title of the Securities of such series, the applicable Overdue Rate;
-11-
<PAGE> 18
(14) if the Securities of such series do not bear
interest, the applicable dates for the purpose of clause (i) of
Section 7.1;
(15) whether the Securities of such series are to be
issued as Registered Securities (with or without Coupons) or
Unregistered Securities or both, and, if Unregistered Securities or
Coupon Securities are issued, whether Unregistered Securities or
Coupon Securities of such series may be exchanged for Registered
Securities or Fully Registered Securities of such series and whether
Registered Securities or Fully Registered Securities of such series
may be exchanged for Unregistered Securities of such series and the
circumstances under which and the place or places where any such
exchanges, if permitted, may be made;
(16) the currency or currencies, or currency unit or
currency units (or with reference to any index or indices with respect
to a currency or currency unit), whether Dollars or otherwise, in
which the Securities of such series or any interest or other amounts
payable with respect thereto, including Coupons, are to be
denominated, payable, redeemable or repurchasable, as the case may be;
(17) whether the Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities;
the terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual
Securities, and the Depositary for such Global Security or Securities;
(18) the terms and conditions, if any, upon which any
Securities of such series may or shall be converted into other
securities or property; and
(19) any other terms of such series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the authority granted in such resolution of the Board of Directors
of the Company or in any such indenture supplemental thereto.
Section 3.2 Form and Denominations. In the absence of any
specification pursuant to Section 3.1 with respect to the Securities of any
series, the Securities of such series shall be issuable as Fully Registered
Securities in denominations of
-12-
<PAGE> 19
1,000 and any integral multiple thereof, and shall be payable in Dollars.
Section 3.3 Authentication and Dating. At any time and from time to
time after the execution and delivery of this Indenture, the Company and the
Guarantor may deliver Securities of any series, with appropriate Coupons, if
any, attached thereto, executed by the Company to the Trustee for
authentication. Except as otherwise provided in this Article 3, the Trustee
shall thereupon authenticate and deliver, or cause to be authenticated and
delivered, such Securities to or upon Company Order, without any further action
by the Company or the Guarantor. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, prior to the initial
authentication of such Securities, and (subject to Section 9.1) shall be fully
protected in relying upon:
(1) a Board Resolution relating thereto and, if
applicable, an appropriate record of any action taken pursuant to such
Board Resolution, in each case certified by the Secretary or an
Assistant Secretary of the Company;
(2) an executed supplemental indenture, if any, relating
thereto;
(3) an Officers' Certificate, which shall state that all
conditions precedent provided for in this Indenture relating to the
issuance of such Securities have been complied with; and
(4) an Opinion of Counsel.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security of any series shall be dated the
date of its authentication, except as otherwise provided pursuant to Section
3.1 with respect to the Securities of such series.
Section 3.4 Execution of Securities and Coupons. The Securities and
the Coupons, if any, appertaining thereto shall be signed in the name or on
behalf of the Company by the manual or facsimile signatures of the Chairman of
the Board of Directors, any Vice Chairman, the President or any Vice President
and additionally, in the case of each Security, under its corporate seal (which
may be printed, engraved or otherwise reproduced thereon, by facsimile or
otherwise) and attested to by the Secretary or any Assistant Secretary, the
signatures of whom may be manual or facsimile. No Security or Coupon
appertaining thereto shall be entitled to the benefits of this Indenture or the
Guarantee or be valid or obligatory for any purpose, unless there appears on
such Security a certificate of authentication substantially in the form recited
above, executed
-13-
<PAGE> 20
by or on behalf of the Trustee by manual signature. Such certificate by or on
behalf of the Trustee upon any Security executed by the Company shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
If any officer of the Company who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before such
Securities or Coupons shall have been authenticated and delivered by or on
behalf of the Trustee, or disposed of by the Company or the Guarantor, such
Securities and Coupons nevertheless may be authenticated, delivered or disposed
of as though the individual who signed such Securities or Coupons had not
ceased to be such officer of the Company. Furthermore, any Security or Coupon
may be signed on behalf of the Company by such individuals as, at the actual
date of the execution of such Security or Coupon, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any
such individual was not such an officer.
The Trustee shall not authenticate or deliver any Coupon Security
until any matured Coupons appertaining thereto have been detached and
cancelled, except as otherwise provided or permitted by this Indenture.
Section 3.5 Registration; Registration of Transfer and Exchange.
Subject to the conditions set forth below or to Section 2.4, Securities of any
series may be exchanged for a like aggregate principal amount of Securities of
the same series and having the same terms of other authorized denominations.
Securities to be exchanged shall be surrendered together, in the case of Coupon
Securities, with all unmatured Coupons and matured Coupons in default
appertaining thereto, at the offices or agencies to be maintained by the
Company for such purposes as provided in Section 6.2(1), and the Company shall
execute or register and the Trustee or any Authenticating Agent shall
authenticate and deliver in exchange therefor the Security or Securities which
the Holder making the exchange shall be entitled to receive.
The Company shall keep or cause to be kept, at one of such offices or
agencies, a register for each series of Securities issued hereunder which may
include Registered Securities (hereinafter collectively referred to as the
"Securities Register") in which, subject to reasonable regulations it may
prescribe, the Company shall provide for the registration of Registered
Securities of such series and shall register the transfer of Registered
Securities of such series as provided in this Article 3. The Securities
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. The Trustee and the
Authenticating Agent are hereby appointed "Securities Registrars" for the
purpose of registering Registered Securities and registering
-14-
<PAGE> 21
transfers of Registered Securities as herein provided. Upon due presentment
for registration of transfer of any Security of any series at any such office
or agency, the Company shall execute and register and the Trustee or any
Authenticating Agent shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Securities of the same
series for an equal aggregate principal amount.
At the option of the Holder thereof, Securities of any series, whether
Registered Securities or Unregistered Securities, which by their terms are
registrable as to principal only or as to principal and interest, may, to the
extent and under the circumstances specified pursuant to Section 3.1, be
exchanged for such Registered Securities with Coupons or Fully Registered
Securities of such series, as may be issued by the terms thereof. Securities
of any series, whether Registered Securities or Unregistered Securities, which
by their terms provide for the issuance of Unregistered Securities, may not,
except to the extent and under the circumstances specified pursuant to Section
3.1, be exchanged for Unregistered Securities of such series. Securities so
issued in exchange for other Securities shall be of like Stated Maturity.
Unregistered Securities of any series issued in exchange for Registered
Securities of such series between the record date for such Registered
Securities and the next Interest Payment Date will be issued without the Coupon
relating to such Interest Payment Date, and Unregistered Securities surrendered
in exchange for Registered Securities between such dates shall be surrendered
without the Coupon relating to such Interest Payment Date.
Upon presentation for registration of any Unregistered Security of any
series which by its terms is registrable as to principal, at the office or
agency of the Company to be maintained as provided in Section 6.2(1), such
Security shall be registered as to principal in the name of the Holder thereof,
and such registration shall be noted on such Security. Any Security so
registered shall be transferable on the Securities Register of the Company upon
presentation of such Security at such office or agency for similar notation
thereon, but, to the extent permitted by law, such Security may be discharged
from registration by being in a like manner transferred to bearer, whereupon
transferability by delivery shall be restored. To the extent permitted by law,
Unregistered Securities shall continue to be subject to successive
registrations and discharges from registration at the option of the Holders
thereof.
Unregistered Securities and Coupons shall be transferred by delivery.
All Securities presented for registration of transfer or for exchange,
redemption or payment shall (if so required by the Company or the Securities
Registrar) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Securities
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing.
-15-
<PAGE> 22
Each Security issued upon registration of transfer or exchange of
Securities pursuant to this Section 3.5 shall be the valid obligation of the
Company, evidencing the same indebtedness and entitled to the same benefits
under this Indenture as the Security or Securities surrendered upon
registration of such transfer or exchange.
No service charge shall be made for any registration or transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.7, Section 4.3, or Section 12.4 not involving
any transfer.
The Company shall not be required (a) to issue, exchange or register
the transfer of any Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series and ending at the close of business on
the day of such mailing, or (b) to exchange or register the transfer of any
Securities selected, called or being called for redemption except, in the case
of any Security to be redeemed in part, the portion thereof not to be so
redeemed.
None of the Company, the Guarantor, the Trustee, any Paying Agent or
the Securities Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Section 3.6 Mutilated, Destroyed, Lost or Stolen Securities or
Coupons. If any temporary or definitive Security or Coupon shall become
mutilated or be destroyed, lost or stolen, and neither the Company nor the
Trustee has been notified that such Security or Coupon has been acquired by a
bona fide purchaser, the Company in the case of a mutilated Security or Coupon
shall, and in the case of a lost, stolen or destroyed Security or Coupon may in
its discretion, execute a new Security (with Coupons, if any, attached to the
mutilated, destroyed, lost or stolen Security so that neither gain nor loss
shall result) or new Coupon, as appropriate. The new Security shall be of the
same series, tenor and principal amount, bearing a number, letter or other
distinguishing symbol not contemporaneously Outstanding. Upon a Company
Request, the Trustee shall authenticate and deliver, or cause to be
authenticated and delivered, such new Security or new Coupon in exchange and
substitution for the mutilated Security or Coupon, or in lieu of and in
substitution for the Security or Coupon so destroyed, lost or stolen, or if any
such Security or Coupon shall have matured or shall be about to mature, instead
of issuing a substituted Security or Coupon, the Company may pay or authorize
the payment of the same without surrender thereof
-16-
<PAGE> 23
(except in the case of a mutilated Security or Coupon). Interest represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an office or agency located outside of the United States, unless
otherwise provided pursuant to Section 3.1. In every case the applicant for a
substituted Security or Coupon shall furnish to the Company and to the Trustee
such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and to the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Security or Coupon and of the
ownership thereof.
Upon the issuance of any substituted Security or Coupon under this
Section 3.6, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee and any
Authenticating Agent) connected therewith.
Every substituted Security or Coupon issued pursuant to the provisions
of this Section 3.6 because a Security or Coupon is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security or Coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities and
Coupons of the same series duly issued hereunder. The foregoing provisions of
this Section 3.6 are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities and Coupons and shall preclude
(to the extent lawful) any and all other rights or remedies with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section 3.7 Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities (printed, lithographed or
typewritten). Temporary Securities shall be issuable in any authorized
denomination and substantially in the form of the definitive Securities in lieu
of which they are issued but with such omissions, insertions and variations as
may be appropriate for temporary Securities, all as may be determined by the
Company. Every such temporary Security shall be executed by the Company and
shall be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Securities in lieu of which they are issued. Temporary Securities may be
issued as Registered Securities or Unregistered Securities, with or without one
or more Coupons attached. Without unreasonable delay, the Company will execute
and deliver to the Trustee definitive Securities of such series and thereupon
any or all temporary Securities of such series may
-17-
<PAGE> 24
be surrendered in exchange therefor, at the Corporate Trust Office of the
Trustee, or, in the case of temporary Securities issued in respect of
Unregistered Securities of any series, at the corporate trust office of the
Trustee located in a city specified elsewhere in this Indenture or pursuant to
Section 3.1, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities an equal aggregate principal amount of definitive
Securities of the same series with appropriate Coupons, if any, attached. Such
exchange shall be made by the Company at its own expense and without any charge
therefor except that if any such exchange involves any registration of
transfer, the Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series authenticated and delivered hereunder.
Section 3.8 Payment of Interest; Interest Rights Preserved. The
Holder of any Fully Registered Securities at the close of business on any
record date with respect to any Interest Payment Date shall be entitled to
receive the interest, if any, payable on such Interest Payment Date
notwithstanding the cancellation of such Securities upon any transfer or
exchange after the record date and before such Interest Payment Date. In the
case of Coupon Securities, the Holder of any Coupon shall be entitled to
receive the interest, if any, payable on such Interest Payment Date, upon
surrender on such Interest Payment Date of the Coupon in respect of such
interest. Except as otherwise specified as contemplated by Section 3.1, for
Fully Registered Securities of a particular series the term "record date" as
used in this Section 3.8 with respect to any Interest Payment Date shall mean
the close of business on the last day of the calendar month preceding such
Interest Payment Date if such Interest Payment Date is fifteenth day of a
calendar month and shall mean the close of business on the fifteenth day of the
calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be a
Business Day.
If and to the extent the Company shall default in the payment of
interest due in respect of any Fully Registered Securities, such defaulted
interest shall be paid by the Company, at its election in each case, as
provided either in clause (1) or (2) below:
(1) The Company may make payment of any defaulted
interest to the Holder of Fully Registered Securities at the close of
business on a subsequent record date established by notice given by
mail by or on behalf of the Company to such Holder not less than 15
days preceding such subsequent record date, such record date to be not
less than 10 days preceding the date of payment of such defaulted
interest.
-18-
<PAGE> 25
(2) The Company may make payment of any defaulted
interest on the Fully Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of such series may be listed, and
upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by
the Trustee.
Any defaulted interest payment in respect of a Coupon Security of any
series shall be payable pursuant to procedures satisfactory to the Trustee so
that there is no discrimination between the Holders of Fully Registered
Securities and Coupon Securities of such series, and notice of the payment date
therefor shall be given by the Trustee, in the name and at the expense of the
Company, in the manner provided in Section 14.3.
Subject to the foregoing provisions of this Section 3.8, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.9 Cancellation. All Securities surrendered for the purpose
of payment, redemption, exchange or registration of transfer or for credit
against any sinking fund, and all Coupons surrendered for payment or exchange,
shall, if surrendered to the Company or any Paying Agent or any Securities
Registrar, be surrendered to the Trustee and promptly cancelled by it, or, if
surrendered to the Trustee, shall be promptly cancelled by it, and no
Securities or Coupons shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee may destroy
cancelled Securities and Coupons and deliver a certificate of such destruction
to the Company and the Guarantor or, at the written request of the Company,
shall deliver such cancelled Securities and Coupons to the Company. If the
Company shall acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities or Coupons unless and until the same are surrendered to the
Trustee for cancellation.
Section 3.10 Computation of Interest. Except as otherwise specified
as contemplated by Section 3.1 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 3.11 Currency and Manner of Payments in Respect of Securities.
(a) With respect to Registered Securities of any series
denominated in Dollars or Foreign Currency and with respect to
-19-
<PAGE> 26
Registered Securities of any series denominated in any currency unit, with
respect to which the Holders of Securities of such series have not made the
election provided for in paragraph (b) below, the following payment provisions
shall apply:
(1) Except as provided in subparagraph (a)(2) or in
subparagraph (e) below, payment of the principal of and premium, if
any, on any Registered Security will be made at the Place of Payment
by delivery of a check in the currency or currency unit in which the
Security is payable on the payment date against surrender of such
Registered Security, and any interest on any Fully Registered Security
will be paid at the Place of Payment by mailing a check in the
currency or currency unit in which such interest is payable to the
Person entitled thereto at the address of such Person appearing on the
Securities Register.
(2) Payment of the principal of, premium, if any, and
(with respect to Fully Registered Securities only) interest, if any,
on such Security may also, subject to applicable law and regulations,
be made at such other place or places as may be designated by the
Company by any appropriate method.
(b) With respect to Registered Securities of any series
denominated in any currency unit, the following payment provisions shall apply,
except as otherwise provided in paragraphs (e) and (f) below:
(1) It may be provided pursuant to Section 3.1 with
respect to the Securities of such series that Holders shall have the
option to receive payments of principal of, premium, if any, and (with
respect to Fully Registered Securities only) interest, if any, on such
Securities in any of the currencies which may be designated for such
election in such Securities by delivering to the Trustee a written
election, to be in form and substance satisfactory to the Trustee, not
later than the close of business on the record date immediately
preceding the applicable payment date. Such election will remain in
effect for such Holder until changed by the Holder by written notice
to the Trustee (but any such change must be made not later than the
close of business on the record date immediately preceding the next
payment date to be effective for the payment to be made on such
payment date, and no such change may be made with respect to payments
to be made on any Security of such series with respect to which notice
of redemption has been given by the Company pursuant to Article 4).
Any Holder of any such Security who shall not have delivered any such
election to the Trustee not later than the close of business on the
applicable record
-20-
<PAGE> 27
date will be paid the amount due on the applicable payment date in the
relevant currency unit as provided in paragraph (a) of this Section
3.11. Payment of principal of and premium, if any, shall be made on
the payment date against surrender of such Security. Payment of
principal of, premium, if any, and (with respect to Fully Registered
Securities only) interest, if any, shall be made at the Place of
Payment by mailing at such location a check, in the applicable
currency or currency unit to the Person entitled thereto at the
address of such Person appearing on the Securities Register.
(2) Payment of the principal of, premium, if any, and
(with respect to Fully Registered Securities only) interest, if any,
on such Security may also, subject to applicable laws and regulations,
be made at such other place or places as may be designated by the
Company by any appropriate method.
(c) Payment of the principal of and premium, if any, on any
Unregistered Security and of interest on any Coupon Security will be made
unless otherwise specified pursuant to Section 3.1 or Section 12.1(e) at such
place or places outside the United States as may be designated by the Company
pursuant to any applicable laws or regulations by any appropriate method in the
currency or currency unit in which the Security is payable (except as provided
in paragraph (e) below) on the payment date against surrender of the
Unregistered Security, in the case of payment of principal and premium, if any,
or the relevant Coupon, in the case of payment of interest, if any. Except as
provided in paragraph (e) below, payment with respect to Unregistered
Securities and Coupons will be made by check, subject to any limitations on the
methods of effecting such payment specified in the terms of the Security
established as provided in Section 3.1 and Section 12.1(e) or required under
applicable laws and regulations.
(d) Not later than the fourth Business Day after the record date
for each payment date, the Trustee will deliver to the Company a written notice
specifying, in the currency or currency unit in which each series of the
Securities is payable, the aggregate amounts of principal of, and premium and
interest, if any, on, the Securities to be made on such payment date,
specifying the amounts so payable in respect of Fully Registered Securities,
Registered Securities with Coupons and Unregistered Securities and in respect
of the Registered Securities as to which the Holders of Securities denominated
in any currency unit shall have elected to be paid in another currency as
provided in paragraph (b) above. If the election referred to in paragraph (b)
above has been provided for pursuant to Section 3.1, and if at least one Holder
has made such election, then not later than the eighth Business Day following
each record date the Company will deliver to the Trustee an Exchange Rate
Officer's
-21-
<PAGE> 28
Certificate in respect of the Dollar or Foreign Currency payments to be made on
such payment date. The Dollar or Foreign Currency amount receivable by Holders
of Registered Securities denominated in a currency unit who have elected
payment in such currency as provided in paragraph (b) above shall be determined
by the Company on the basis of the applicable Official Currency Unit Exchange
Rate set forth in the applicable Exchange Rate Officer's Certificate. As used
herein, "Official Currency Unit Exchange Rate" means, with respect to any
payment to be made hereunder, the exchange rate between the relevant currency
unit and the Dollar calculated by the agency specified pursuant to Section 3.1
for the Securities of the relevant series on the second Business Day (in the
city in which such agency has its principal office) immediately preceding the
applicable payment date.
(e) If a Foreign Currency in which any of the Securities are
denominated or payable ceases to be used both by the government of the country
which issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, or if any
currency unit in which a Security is denominated or payable ceases to be used
for the purposes for which it was established, then with respect to each date
for the payment of principal of, and premium and interest, if any, on, the
applicable Securities denominated or payable in such Foreign Currency or such
currency unit occurring after the last date on which such Foreign Currency or
such currency unit was so used (the "Conversion Date"), the Dollar shall be the
currency of payment for use on each such payment date. The Dollar amount to be
paid by the Company to the Trustee and by the Trustee or any Paying Agent to
the Holders of such Securities with respect to such payment date shall be the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit as determined by the Trustee or the
clearinghouse bank, if any, from time to time selected by the Trustee for
purposes of this Section (the "Dollar Determination Agent"), as of the record
date (the "Valuation Date") in the manner provided in paragraph (g) or (h)
below.
(f) If the Holder of a Registered Security denominated in a
currency unit elects payment in a specified Foreign Currency as provided for by
paragraph (b) and such Foreign Currency ceases to be used both by the
government of the country which issued such currency and for the settlement of
transactions by public institutions of or within the international banking
community, such Holder shall receive payment in such currency unit, or if any
such currency unit ceases to be used for the purpose for which it was
established, such Holder shall receive payment in Dollars.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Trustee or the Dollar Determination Agent, if any, as of each
Valuation Date and shall be obtained by
-22-
<PAGE> 29
converting the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Trustee or the Dollar Determination Agent, if any, as of each
Valuation Date and shall be the sum obtained by adding together the results
obtained by converting the Specified Amount of each Component Currency into
Dollars at the Market Exchange Rate on the Valuation Date for such Component
Currency.
(i) For purposes of this Section 3.11, the following terms shall
have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit.
A "Specified Amount" of a Component Currency shall mean the number of
units or fractions thereof which such Component Currency represented in the
relevant currency unit on the Conversion Date. If after the Conversion Date
the official unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be divided
or multiplied in the same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single currency, the Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the Specified Amounts of such consolidated
Component Currencies expressed in such single currency, and such amount shall
thereafter be a Specified Amount and such single currency shall thereafter be a
Component Currency. If after the Conversion Date any Component Currency shall
be divided into two or more currencies, the Specified Amount of such Component
Currency shall be replaced by Specified Amounts of such two or more currencies,
the sum of which, at the Market Exchange Rate of such two or more currencies on
the date of such replacement, shall be equal to the Specified Amount of such
former Component Currency divided by the number of currencies into which such
Component Currency was divided, and such amounts shall thereafter be Specified
Amounts and such currencies shall thereafter be Component Currencies.
"Market Exchange Rate" shall mean for any currency the noon Dollar
buying rate for that currency for cable transfers quoted on the Valuation Date
as certified for customs purposes by the Federal Reserve Bank of New York. If
such rates are not available for any reason with respect to one or more
currencies for which an Exchange Rate is required, the Trustee or the Dollar
Determination Agent, if any, shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York
as of the most recent available date, or quotations from one or more major
banks in the United States or in the country of issue of the currency in
question, or such other quotations as the Trustee or the Dollar
-23-
<PAGE> 30
Determination Agent, if any, shall deem appropriate. Unless otherwise
specified by the Trustee or the Dollar Determination Agent, if any, if there is
more than one market for dealing in any currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency
shall be that upon which a nonresident issuer of securities designated in such
currency would purchase such currency in order to make payments in respect of
such securities. With regard to any currency unit, "Market Exchange Rate"
shall mean the rate of exchange as quoted from one or more major banks in the
United States, or such other rates of exchange designated from time to time by
the Board of Directors pursuant to Section 3.1 or as the Trustee or Dollar
Determination Agent, if any, shall deem appropriate.
All decisions and determinations of the Trustee or the Dollar
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and the Guarantor and all Holders of the Securities and Coupons, denominated or
payable in the relevant currency or currency units. If a Foreign Currency
ceases to be used both by the government of the country which issued such
currency and for the settlement of transactions by public institutions of or
within the international banking community, the Company, after learning
thereof, will immediately give notice thereof to the Trustee (and the Trustee
will promptly thereafter give notice in the manner provided in Section 14.3 to
the Holders) specifying the Conversion Date. If any currency unit in which
Securities or Coupons are denominated or payable ceases to be used for the
purposes for which it was established, the Company, after learning thereof,
will immediately give notice thereof to the Trustee (and the Trustee will
promptly thereafter give notice in the manner provided in Section 14.3 to the
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event of any subsequent
change in any Component Currency as set forth in the definition of Specified
Amount above, the Company, after learning thereof, will similarly give notice
to the Trustee. The Trustee shall be fully justified and protected in relying
and acting upon information received by it from the Company and the Dollar
Determination Agent, if any, and shall not otherwise have any duty or
obligation to determine such information independently.
Section 3.12 Compliance with Certain Laws and Regulations. If any
Unregistered Securities or Coupon Securities are to be issued in any series of
Securities, the Company will use reasonable efforts to provide for arrangements
and procedures designed pursuant to laws or regulations then applicable to
ensure that such Unregistered Securities or Coupon Securities are sold or
resold, exchanged, transferred or paid only in
-24-
<PAGE> 31
compliance with such laws or regulations and without adverse consequences to
the Company or the Guarantor.
ARTICLE 4
REDEMPTION OF SECURITIES
Section 4.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity except as otherwise specified as contemplated by Section 3.1 for
the Securities of such series.
Section 4.2 Notice of Redemption; Selection of Securities. If the
Company shall desire to exercise the right to redeem all or any part of the
Securities of any series (or all or any part of the Unregistered Securities of
such series or all or any part of the registered Securities of such series, if
the terms and conditions of redemption shall differ with respect to
Unregistered Securities and Registered Securities of such series as specified
in the terms of such Securities established pursuant to Section 3.1) in
accordance with their terms, the Company shall fix a Redemption Date and the
Company, or at the option of the Company, the Trustee on behalf of the Company
shall provide notice of such redemption at least 30 and not more than 60 days
before such Redemption Date to the Trustee and to the Holders of Securities of
such series so to be redeemed as a whole or in part in the manner provided in
Section 14.3. Notice given in the manner herein specified shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, failure to give such notice or any defect
in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
Each such notice of redemption shall specify:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the Place or Places of Payment;
(d) that the Securities of such series are being redeemed
at the option of the Company pursuant to provisions contained in the
terms of the Securities of such series or in a supplemental indenture
establishing such series, together with a brief statement of the facts
permitting such redemption;
(e) that payment will be made upon presentation and
surrender of the applicable Securities;
-25-
<PAGE> 32
(f) that, unless otherwise specified in such notice,
Coupon Securities of any series, if any, surrendered for payment must
be accompanied by all Coupons, if any, maturing on or after the date
fixed for redemption, or the amount of any such missing Coupon or
Coupons will be deducted from the sum due for payment;
(g) that any interest accrued to the Redemption Date will
be paid as specified in the notice; and
(h) that on and after the Redemption Date, any interest
thereon or on the portions thereof to be redeemed will cease to
accrue.
If less than all the Securities of any series are to be redeemed, the
notice of redemption shall specify the numbers of the Securities of such series
to be redeemed. If only Unregistered Securities of any series are to be
redeemed, and if such Unregistered Securities may be exchanged for Registered
Securities, the notice of redemption shall specify the last date on which
exchanges of Unregistered Securities for Registered Securities not subject to
redemption may be made. If any Security of any series is to be redeemed in
part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the Redemption
Date, upon surrender of such Security or any Coupons appertaining thereto, a
new Security or Securities of such series in principal amount equal to the
unredeemed portion thereof and with appropriate Coupons will be issued. In the
case of Securities providing appropriate space for such notation, at the option
of the Holders, the Trustee, in lieu of delivering a new Security or
Securities, may make a notation on such Security of the payment of the redeemed
portion thereof.
On or before (but at least one Business Day before, in the case of
payments made in a currency or currency unit other than Dollars) the Redemption
Date with respect to the Securities of any series stated in the notice of
redemption given as provided in this Section 4.2, the Company will deposit with
the Trustee or with one or more Paying Agents an amount of money in the
currency or currency unit in which the Securities of such series and any
Coupons appertaining thereto are payable (except as otherwise specified as
contemplated by Section 3.1 for the Securities of such series and except as
provided in Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture) sufficient
to redeem on such Redemption Date all the Securities or portions thereof so
called for redemption at the applicable Redemption Price, together with accrued
interest to such Redemption Date. If the Company is acting as its own Paying
Agent, it will segregate such amount and hold it in trust as provided in
Section 6.2(7).
-26-
<PAGE> 33
If fewer than all the Securities of a series are to be redeemed
(except in the case of a redemption in whole of the Unregistered Securities,
the Coupon Securities, the Registered Securities or the Fully Registered
Securities of such series), the Company will give the Trustee written notice
not less than 45 days before the Redemption Date of the aggregate principal
amount of Securities to be redeemed, and the Trustee shall select, not more
than 60 days before the Redemption Date and in such manner as in its sole
discretion it shall deem appropriate and fair, the Securities of such series or
portions thereof (in multiples of 1,000 in the currency or currency unit in
which the Securities of such series are denominated, except as otherwise set
forth in the applicable form of Security) to be redeemed.
Section 4.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as provided in Section 4.2 or Section 5.3, the
Securities or portions of Securities of the series with respect to which such
notice has been given shall become due and payable on the Redemption Date and
at the place or places stated in such notice at the applicable Redemption
Price, together with any interest accrued to such Redemption Date. On and
after the Redemption Date (unless the Company shall default in the payment of
such Securities at the applicable Redemption Price, together with any interest
accrued to the Redemption Date) any interest on the Securities or portions of
Securities of any series so called for redemption shall cease to accrue. On
presentation and surrender of such Securities and all Coupons, if any,
appertaining thereto, at a Place of Payment in such notice specified, such
Securities and Coupons or the specified portions thereof shall be paid and
redeemed by the Company at the applicable Redemption Price, together with any
interest accrued thereon to the applicable Redemption Date in the currency or
currency unit in which the Securities of such series and the Coupons, if any,
appertaining thereto are payable (except as otherwise specified as contemplated
by Section 3.1 for the Securities of such series and except as provided in
Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture).
If any Coupon Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing on or after the Redemption
Date, such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing Coupons or the surrender of
such missing Coupon or Coupons may be waived by the Company and the Trustee, if
there be furnished to them such security or indemnity as they may require to
save each of them and any Payment Agent harmless. If thereafter the Holder of
such Security shall surrender to any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that, unless otherwise provided pursuant to Section 3.1 or Section
12.1(e), interest represented by Coupons shall be payable only upon
presentation and surrender of those
-27-
<PAGE> 34
Coupons at an office or agency located outside of the United States.
Upon presentation of any Security redeemed in part only and the
Coupons, if any, appertaining thereto, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder thereof, at the expense of
the Company, a new Security or Securities of the same series and the Coupons,
if any, appertaining thereto, of authorized denominations, in aggregate
principal amount equal to the unredeemed portion of the Security so presented.
ARTICLE 5
SINKING FUNDS
Section 5.1 Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment."
Section 5.2 Satisfaction of Mandatory Sinking Fund Payments with
Securities. In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series (together with
the unmatured Coupons, if any, appertaining thereto) theretofore purchased or
otherwise acquired by the Company or the Guarantor, or (b) receive credit for
Securities of that series that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
mandatory or optional sinking fund payments pursuant to the terms of the
Securities of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
Section 5.3 Redemption of Securities for Sinking Fund. Not less than
30 days before each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee a certificate signed by the Treasurer or
any Assistant Treasurer of the Company specifying the amount of the next
-28-
<PAGE> 35
ensuing sinking fund payment for such series pursuant to the terms of such
series, the portion thereof, if any, which is to be satisfied by payment of
cash in the currency or currency unit in which the Securities of such series,
and the Coupons, if any, appertaining thereto, are payable (except as otherwise
specified as contemplated by Section 3.1 for the Securities of such series and
except as provided in Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture)
and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of such series pursuant to Section 5.2, and whether the
Company intends to exercise its rights to make a permitted optional sinking
fund payment with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments (in the currency or currency unit described above)
therein referred to, if any, on or before the next succeeding sinking fund
payment date. If the Company fails to deliver such certificate (or to deliver
the Securities and Coupons, if any, specified in such certificate), the sinking
fund payment due on the next succeeding sinking fund payment date for such
series shall be paid entirely in cash (in the currency or currency unit
described above) and shall be sufficient to redeem the principal amount of the
Securities of such series subject to a mandatory sinking fund payment without
the right to deliver or credit Securities as provided in Section 5.2 and
without the right to make any optional sinking fund payment, if any, with
respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash (in the currency or currency unit described above), plus any unused
balance of any preceding sinking fund payments made with respect to the
Securities of any particular series, shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent) on the sinking fund
payment date on which such payment is made (or, if such payment is made before
a sinking fund payment date, on the sinking fund payment date following the
date of such payment) to the redemption of Securities of such series at the
Redemption Price specified in such Securities with respect to the sinking fund,
together with accrued interest, if any, to the applicable Redemption Date. Any
sinking fund moneys not so applied or allocated by the Trustee (or by the
Company if the Company is acting as its own Paying Agent) to the redemption of
Securities shall be added to the next sinking fund payment received by the
Trustee (or if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 6.2(7)) for such series and, together with
such payment (or such amount so segregated) shall be applied in accordance with
the provisions of this Section 5.3. Any and all sinking fund moneys with
respect to the Securities of any particular series held by the Trustee (or if
the Company is acting as its own Paying Agent, segregated and held in trust as
provided in Section 6.2(7)) on the last sinking fund payment date with respect
to Securities of such series and not held for the payment of redemption of
particular Securities of such series shall be applied by the
-29-
<PAGE> 36
Trustee (or by the Company if the Company is acting as its own Paying Agent),
together with other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of the Securities
of such series at maturity. The Trustee shall not convert any currency or
currency unit in which the Securities of such series are payable for the
purposes of such sinking fund application unless specifically requested to do
so by the Company, and any such conversion agreed to by the Trustee in response
to such request shall be for the account and at the expense of the Company and
shall not affect the Company's obligation to pay the Holders in the currency or
currency unit to which such Holders may be entitled.
The Trustee shall select or cause to be selected the Securities to be
redeemed upon such sinking fund payment date in the manner specified in the
last paragraph of Section 4.2 and the Company, or the Trustee on behalf of the
Company, shall cause notice of the redemption thereof to be given in the manner
provided in Section 4.2, except that the notice of redemption shall also state
that the Securities are being redeemed by operation of the sinking fund and
whether the sinking fund payment is mandatory or optional, or both, as the case
may be. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 4.3.
On or before (but at least one Business Day before, in the case of
payments made in a currency or currency unit other than Dollars) each sinking
fund payment date, the Company shall pay to the Trustee (or, if the Company is
acting as its own Paying Agent, will segregate and hold in trust as provided in
Section 6.2(7)) in cash (in the currency or currency unit described in the
first paragraph of this Section 5.3) a sum equal to the principal and any
interest accrued to the Redemption Date for Securities or portions thereof to
be redeemed on such sinking fund payment date pursuant to this Section.
Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any Securities of
such series or of any Event of Default (other than an Event of Default
occurring as a consequence of this paragraph) with respect to the Securities of
such series. If, however, the notice of redemption shall have been provided in
accordance with the provisions hereof, the Trustee (or the Company if the
Company is acting as its own Paying Agent) shall redeem such Securities if cash
(in currency or currency unit described in the first paragraph of this Section
5.3) sufficient for that purpose shall be deposited with the Trustee (or
segregated by the Company) for that purpose in accordance with the terms of
this Article. Except as provided in the immediately preceding
-30-
<PAGE> 37
sentence, any moneys (in the currency or currency unit described in the first
paragraph of this Section 5.3) in the sinking fund for such series at the time
when any such default or Event of Default shall occur and any moneys (in the
currency or currency unit described in the first paragraph of this Section 5.3)
thereafter paid into such sinking fund shall, during the continuance of such
default or Event of Default, be held as security for the payment of the
Securities of such series and the Coupons, if any, appertaining thereto.
Notwithstanding the foregoing, if such Event of Default or default shall have
been cured or waived as provided herein, such moneys (in the currency or
currency unit described in the first paragraph of this Section 5.3) shall
thereafter be applied on the next sinking fund payment date for the Securities
of such series on which such moneys may be applied pursuant to the provisions
of this Section.
ARTICLE 6
CERTAIN COVENANTS
On and after the date of execution of this Indenture and so long as
any of the Securities of a series remain Outstanding:
Section 6.1 Payment of Securities. The Company covenants and agrees
to duly and punctually pay or cause to be paid (in the currency or currency
unit in which the Securities of such series and Coupons, if any, appertaining
thereto are payable, except as otherwise specified as contemplated by Section
3.1 for the Securities of such series and except as provided in Sections
3.11(b), 3.11(e) and 3.11(f) of this Indenture) the principal of, and the
premium and interest, if any, on, the Securities of such series at the times
and places and in the manner provided in such Securities, any Coupons
appertaining thereto, and in this Indenture.
The interest on Coupon Securities shall be payable only upon
presentation and surrender of the Coupons for such interest installments as
they mature. The interest, if any, on any temporary Unregistered Security
shall be paid, as to any interest evidenced by a Coupon attached thereto, if
any, only upon presentation and surrender of such Coupon, and, as to other
installments of interest, if any, only upon presentation of such Security for
notation thereon of the payment of such interest.
Section 6.2 Other Covenants.
(1) Office or Agency. The Company covenants and agrees to
maintain an office or agency where Registered Securities of such series may be
presented or surrendered for payment, where Securities of such series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of such series and
this
-31-
<PAGE> 38
Indenture may be served, which office or agency shall initially be the
Corporate Trust Office of the Trustee. So long as any Coupon Securities or
Unregistered Securities of any series remain Outstanding, the Company will
(except as specified pursuant to Section 3.1 or Section 12.1(e)) maintain one
or more offices or agencies outside the United States in such city or cities as
may be specified elsewhere in this Indenture or as contemplated by Section 3.1,
with respect to such series where Coupons appertaining to Securities of such
series or Unregistered Securities of such series may be surrendered or
presented for payment, or surrendered for exchange pursuant to Section 3.5 and
where notices and demands to or upon the Company in respect of Coupons
appertaining to Securities of such series or the Unregistered Securities of
such series or of this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of any such office or agency. If at any time the Company shall fail to
maintain such required office or agency or shall fail to furnish the Trustee
with the address thereof, presentations, surrenders, notices and demands in
respect of Registered Securities may be made or served at the Corporate Trust
Office of the Trustee and the corporate trust office of any Authenticating
Agent appointed hereunder, and presentations, surrenders, notices and demands
in respect of Coupons appertaining to Securities of any series and Unregistered
Securities may be made or served at the corporate trust office of the Trustee
in the other city or cities referred to above; and the Company hereby appoints
the Trustee and any Authenticating Agent appointed hereunder its agents to
receive all such presentations, surrenders, notices and demands. The Company
may also from time to time designate one or more other offices or agencies
where the Securities of such series may be presented or surrendered for any or
all of such purposes, and may from time to time rescind such designation.
(2) Maintenance of Corporate Existence. The Company and the
Guarantor each covenant and agree at all times to take or cause to be taken all
such action as may from time to time be necessary to maintain, preserve or
renew its corporate existence; provided, however, that nothing in this Section
6.2(2) shall prevent any merger or consolidation permitted by Section 6.2(3).
(3) Consolidations, Mergers, etc. The Company and the Guarantor
each covenant and agree not to lease, sell, transfer or otherwise dispose of
all or substantially all of its assets to, or consolidate with, or merge into,
any other person, firm or corporation, or permit any other person, firm or
corporation to merge into it, unless the person, firm or corporation to which
such assets shall have been leased, sold, transferred or otherwise disposed of
or the corporation formed by such consolidation or the corporation into which
it shall have been merged, as the case may be (any such person, firm or
corporation, other than the Company or the Guarantor, as the
-32-
<PAGE> 39
case may be, being herein called the "New Company"), shall expressly assume all
of the obligations of the Company or the Guarantor, as the case may be, under
the Indenture and the Securities of each series, and unless immediately after
any such transaction, no default shall exist in the performance of any of the
covenants and conditions of the Indenture or the Securities of any series. In
case of any such consolidation, merger, sale or conveyance and upon any such
assumption by the New Company, the New Company shall succeed to and be
substituted for the Company or the Guarantor, as the case may be, with the same
effect as if it had been named herein as the Company or the Guarantor, as the
case may be, and the predecessor corporation shall be relieved of any further
obligation under the Indenture.
(4) Other Instruments, etc. The Company covenants and agrees,
from time to time, upon the written request of the Trustee (which the Trustee,
subject to Section 9.1, shall be under no obligation to make), to execute,
acknowledge and deliver all such further and additional instruments and take
all such further action as may be reasonable or may be required to carry out
the intention of the Indenture, and to provide for the payment of the
Securities of each series, according to the intent and purposes expressed in
the Indenture and in the Securities of such series.
(5) Permit No Vacancy in Office of Trustee. The Company covenants
and agrees, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, to appoint a Trustee in the manner provided in Section 9.9, so that
there shall be at all times a Trustee with respect to each series of Securities
hereunder.
(6) Agreement with Paying Agent. The Company covenants and agrees
that if it shall appoint a Paying Agent other than the Trustee with respect to
the Securities of any series, the Company will cause such Paying Agent to
execute and deliver to the Trustee, an instrument in which such Paying Agent
shall agree with the Trustee subject to the provisions of Section 6.2(7):
(a) that it will hold all sums held by it as such Paying
Agent for the payment of the principal of, and premium or interest, if
any, on, the Securities of such series (whether such sums have been
paid to it by the Company, the Guarantor or by any other obligor on
the Securities of such series) in trust for the benefit of the Holders
of the Securities of such series, and the Coupons, if any,
appertaining thereto or for the benefit of the Trustee;
(b) that it will give the Trustee notice of any default
by the Company or the Guarantor (or by any other obligor on the
Securities of such series) in the making of any payment of the
principal of, or premium
-33-
<PAGE> 40
or interest, if any, on, the Securities of such series when the same
shall be due and payable; and
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, pay promptly to the
Trustee all sums so held in trust by such Paying Agent.
(7) Money for Securities Payments To Be Held in Trust. The
Company covenants and agrees, if it shall act as its own Paying Agent with
respect to the Securities of any series, on or before the due date of the
principal of, or premium or interest, if any, on, the Securities of such series
or the Coupons, if any, appertaining thereto, to set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series and
the Coupons, if any, appertaining thereto, or for the benefit of the Trustee, a
sum (in the currency or currency unit in which the Securities of such series
are denominated, except as otherwise specified as contemplated by Section 3.1
for the Securities of such series and except as provided in Sections 3.11(b),
3.11(e) and 3.11(f) of this Indenture) sufficient to pay such principal,
premium, if any, or interest, if any, so becoming due and to notify the Trustee
and the Guarantor of such action, or any failure (by it, the Guarantor or any
other obligor on the Securities of such series and the Coupons, if any,
appertaining thereto) to take such action.
Whenever the Company shall have one or more Paying Agents with respect
to the Securities of any series, it will, before the due date of the principal
of, or premium or interest, if any, on, the Securities of such series or the
Coupons, if any, appertaining thereto, deposit with a designated Paying Agent a
sum (in the currency or currency unit described in the preceding paragraph)
sufficient to pay the principal, premium, if any, or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium, if any, or interest, if any, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
at its Corporate Trust Office of its failure so to act, provided that, anything
in Subdivisions (6) and (7) of this Section 6.2 to the contrary
notwithstanding, the agreement to hold sums in trust as provided therein is
subject to the provisions of Section 13.4.
(8) Compliance Reports. The Company and the Guarantor each
covenant and agree to file with the Trustee, not less than annually following
the first day of issuance of any series of Securities under this Indenture, a
certificate of the principal executive officer, a principal financial officer
or a principal accounting officer, stating whether or not, to the knowledge of
the signer, the Company or the Guarantor, as the case may be, has complied with
all conditions or covenants on its part contained in this Indenture, or if the
signer has obtained knowledge of any default by the Company or the Guarantor,
as the
-34-
<PAGE> 41
case may be, in the performance, observance, or fulfillment of any such
condition or covenant, specifying each such default and the nature thereof
(provided that, for purposes of this subsection (b), compliance shall be
determined without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture).
Section 6.3 Waiver. The observance of any provision of this Article
6 (except Section 6.1, subsections (5), (6) and (7) of Section 6.2 and Section
6.3) may be waived with respect to any series of the Securities (either
generally or in a particular instance and either before or after the time for
such observance) if the Company or the Guarantor shall have obtained the
consent of the holders of at least a majority in aggregate principal amount of
all Outstanding Securities of such series.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND
THE GUARANTOR AND THE TRUSTEE
Section 7.1 Semiannual Lists of Holders. The Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee for the
Securities of each series (i) semiannually, not more than 15 days after each
record date for the payment of interest, if any, in respect of Securities of
such series and on dates in each year to be determined pursuant to Section 3.1
if the Securities of such series do not bear interest, and (ii) at such other
times as the Trustee may request in writing, within 30 days after receipt by
the Company of any such request, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of the Registered
Securities of such series, as of the record dates therefor (and on dates to be
determined pursuant to Section 3.1 if the Securities of such series do not bear
interest); provided, however, that no such list need be furnished so long as
the Trustee is the Securities Registrar for such series. Any such list may be
dated as of a date not more than 15 days before the time such information is
furnished or caused to be furnished and need not include information received
after such date. The Company shall also be required to furnish such
information known to it concerning the Holders of Coupons and Unregistered
Securities. Notwithstanding the foregoing, the Company shall have no
obligation to investigate any matter relating to any Holder of an Unregistered
Security or any Holder of a Coupon.
Section 7.2 Preservation of Information. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the Holders of Securities of each series (1)
contained in the most recent list furnished to it as provided in Section 7.1,
(2) received by it in the capacity of Paying Agent for such series (if so
acting) hereunder and of Securities Registrar for
-35-
<PAGE> 42
such series, and (3) filed with it within two preceding years pursuant to the
provisions of paragraph (2) of subsection (c) of Section 7.4.
The Trustee for any series of the Securities may (1) destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished, (2) destroy any information received by it as Paying Agent for such
series (if so acting) hereunder upon delivering to itself as Trustee a list
containing the names and addresses of the Holders of Securities of such series
obtained from such information since the delivery of the next previous list, if
any, (3) destroy any list delivered to itself as Trustee that was compiled from
the information received by it as Paying Agent (if so acting) hereunder upon
the receipt of a new list so delivered, and (4) destroy any information filed
with it by Holders of Securities of such series for the purpose of receiving
reports pursuant to the provisions of paragraph (2) of subsection (c) of
Section 7.4, but not until two years after such information has been filed with
it.
(b) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee for
such series, and furnish to the Trustee reasonable proof that each such
applicant has owned a Security of such series for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders of Securities of such
series or with Holders of Securities of all series for which the Trustee is
serving as Trustee with respect to their rights under this Indenture or under
such Securities, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at its
election, either
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 7.2, or
(2) inform such applicants as to the approximate number
of Holders of Securities of such series or of all series, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section 7.2, and as to the approximate cost of
mailing to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of
-36-
<PAGE> 43
such series or all Holders of Securities of series for which it is Trustee, as
the case may be, whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 7.2, a copy of the form of proxy or other communication that is
specified in such request. The Trustee shall mail such copies with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interest of the Holders of
Securities of such series or of the Holders of Securities of all series for
which it is Trustee, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statements so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all
Holders of Securities of such series or to all Holders of Securities of all
series for which it is Trustee, as the case may be, with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each Holder of the Securities, by receiving and holding the
same, agrees with the Company, the Guarantor and the Trustee that none of the
Company, the Guarantor, the Trustee and any Paying Agent shall be held
accountable by reason of the disclosure of any information as to the names or
addresses of the Holders of Securities in accordance with the provisions of
subsection (b) of this Section 7.2, regardless of the source from which such
information was derived, or that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made thereunder.
Section 7.3 Periodic Reports by Company and Guarantor. (a) The
Company and the Guarantor each covenant and agree to file with the Trustee for
each series of the Securities, within 15 days after the Company or the
Guarantor is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time to
time by rules or regulations prescribe) which the Company or the Guarantor may
be required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended. If the Company or
-37-
<PAGE> 44
the Guarantor is not required to file such information, documents or reports
pursuant to either of such sections, then the Company and the Guarantor shall
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, the supplementary
or periodic information, documents or reports that may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a
security listed or registered on a national securities exchange prescribed from
time to time in such rules and regulations.
(b) The Company and the Guarantor each covenant and agree to file
with the Trustee for each series of the Securities and the Commission, in
accordance with the rules and regulations prescribed from time to time by the
Commission, additional information, documents and reports with respect to
compliance by the Company or the Guarantor with the conditions or covenants
provided for in this Indenture required from time to time by such rules and
regulations.
(c) The Company and the Guarantor each covenant and agree to
transmit to all Holders of Securities within 30 days after the filing thereof
with the Trustee for each series of the Securities, in the manner and to the
extent provided in subsection (c) of Section 7.4 with respect to reports
pursuant to subsection (a) of Section 7.4, summaries of any information,
documents or reports filed by the Company or the Guarantor pursuant to
subsection (a) or (b) of this Section 7.3 as may be required by rules and
regulations prescribed from time to time by the Commission.
Section 7.4 Trustee's Reports to Holders. (a) Within 60 days after
the first January 1 that is not less than 60 days after the first issuance of
Securities of any series under this Indenture, and within 60 days after each
subsequent January 1, so long as any Securities are Outstanding hereunder, the
Trustee for each series of the Securities shall transmit to all Holders of
Securities of such series as hereinafter provided in this Section 7.4 a brief
report with respect to any of the following events that may have occurred
during the 12 months preceding the date of such report (but if no such event
has occurred within such period, no report need be transmitted):
(1) any change to its eligibility under Section 9.8, and
its qualifications under Section 9.7, or in lieu thereof, if to the
best of its knowledge, it has continued to be eligible and qualified
under such Sections, a written statement to such effect;
(2) the creation of or any material change to a
relationship specified in Sections 310(b)(1) through Section
310(b)(10) of the Trust Indenture Act;
-38-
<PAGE> 45
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of any series,
on any property or funds held or collected by it as Trustee if the
aggregate of such advances so remaining unpaid equal more than
one-half of 1% of the principal amount of the Securities of any series
Outstanding on the date of such report;
(4) any change to the amount, interest rate or maturity
date of all other indebtedness owing by the Company or the Guarantor
(or by any other obligor on the Securities of any series) to the
Trustee in its individual capacity, on the date of such report, with a
brief description of any property held as collateral security
therefor, except an indebtedness based upon a creditor relationship
arising in any manner described in paragraphs (2), (3), (4) or (6) of
subsection (b) of Section 9.12;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date of
such report;
(6) any additional issue of Securities of any series for
which it is Trustee which the Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Securities of any
series, except action in respect of a default, notice of which has
been or is to be withheld by it in accordance with the provisions of
Section 8.9.
(b) The Trustee for each series of the Securities shall transmit
to all Holders of Securities of such series, as hereinafter provided, a brief
report with respect to the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making thereof)
made by the Trustee as such since the date of the last report transmitted
pursuant to the provisions of Section 7.4(a) (or if no such report has yet been
so transmitted, since the date of execution of this Indenture), for the
reimbursement of which it claims or may claim a lien or charge, prior to that
of the Securities of any series, on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this
subsection, if such advances remaining unpaid at any time aggregate more than
10% of the principal amount of
-39-
<PAGE> 46
Securities of such series Outstanding at such time. Such report shall be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section 7.4 shall be transmitted by
mail:
(1) to all registered Holders of Registered Securities,
as the names and addresses of such Holders appear in the applicable
Securities Register;
(2) to the Holders of Securities of any series that have,
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
(3) except in the cases of reports pursuant to subsection
(b) of this Section 7.4, to each Holder of a Security of any series
whose name and address is preserved at the time by the Trustee for
such series, as provided in subsection (a) of Section 7.2.
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities of any series, be filed by the Trustee
for such series with each stock exchange upon which such Securities are listed
and also with the Commission. The Company agrees to notify the Trustee for
each series when and as any Securities become listed on any stock exchange.
Section 7.5 Compliance Certificates and Opinions. Upon any
application or request by the Company or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company or the Guarantor,
as the case may be, shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 6.2(8)) shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the
-40-
<PAGE> 47
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.
ARTICLE 8
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
Section 8.1 Events of Default. "Event of Default," whenever used
herein with respect to Securities of any series, means any one of the following
events and such other events as may be established with respect to the
Securities of such series as contemplated by Section 3.1 hereof (whatever the
reason for such Event of Default and whether it shall be occasioned by the
provisions of Article 15 or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
continued for the period of time, if any, and after the giving of notice, if
any, designated herein or therein, as the case may be, unless such event is
either inapplicable to a particular series or it is specifically deleted or
modified in the applicable resolution of the Board of Directors of the Company
or in the supplemental indenture under which such series of Securities is
issued, as the case may be, as contemplated by Section 3.1:
(1) a default shall occur in the punctual payment of the
principal of and premium, if any, on any Security of such series when
and as the same shall become due and payable, at its maturity, or a
default shall occur in the making or satisfaction of any sinking fund
payment or analogous obligation as and when the same shall become due
and payable by the terms of the Securities of such series;
(2) a default shall occur in the payment of any
installment of interest on any Security of such series as and when the
same shall become due and payable, and such default shall continue for
30 days;
(3) a default shall occur in the due observance or
performance in any material respect of any other covenant, condition
or agreement on the part of the Company or the Guarantor in respect of
the Securities
-41-
<PAGE> 48
of such series contained in this Indenture (other than a covenant or
agreement in respect of the Securities of such series a default in
whose observance is specifically dealt with elsewhere in this
Section), and any such default shall continue for 90 days after
written notice thereof, specifying such default and requiring the same
to be remedied, shall have been given to the Company and the Guarantor
by the Trustee for such series, which may, in its discretion, give
such notice and shall do so at the request pursuant to Section 10.1 of
the Holders of at least 25% in principal amount of the Securities of
such series at the time Outstanding;
(4) by the order of a court of competent jurisdiction, a
receiver or liquidator or trustee of the Company or the Guarantor or
of any of the property of the Company or the Guarantor shall be
appointed and such receiver or liquidator or trustee shall not have
been discharged within a period of 120 days, or, by decree of such a
court, the Company or the Guarantor shall have been adjudicated
bankrupt or insolvent or any substantial part of the property of the
Company or the Guarantor shall have been sequestered and such decree
shall have continued undischarged and unstayed for a period of 120
days after the entry thereof, or a petition to declare bankrupt or to
reorganize the Company or the Guarantor pursuant to any provision of
the federal Bankruptcy Code, or pursuant to any other similar statute
applicable to the Company or the Guarantor, as now or hereafter in
effect, shall be filed against the Company or the Guarantor (and, in
the case of any such petition filed pursuant to any provision of a
statute which requires the approval of such petition by a court, shall
be approved by such a court) and shall not be dismissed within 120
days after such filing;
(5) the Company or the Guarantor shall file a petition in
voluntary bankruptcy under any provision of any bankruptcy law or
shall consent to the filing of any bankruptcy or reorganization
petition against it under any similar law, or (without limitation of
the generality of the foregoing) the Company or the Guarantor shall
file a petition or answer or consent seeking relief or assisting in
seeking relief for the Company or the Guarantor in a proceeding under
any of the provisions of the federal Bankruptcy Code, or pursuant to
any other similar statute applicable to the Company or the Guarantor,
as now or hereafter in effect, or an answer admitting the material
allegations of a petition filed against it in such a proceeding, or
the Company or the Guarantor or their respective directors or
stockholders shall take action
-42-
<PAGE> 49
seeking the dissolution or liquidation of the Company or the Guarantor
(except in connection with a consolidation, merger, sale or conveyance
pursuant to Article 6 hereof), or the Company or the Guarantor shall
make an assignment for the benefit of its creditors, or shall admit in
writing its inability to pay its debts generally as they become due,
or shall consent to the appointment of a receiver or receivers, or
trustee or trustees, or liquidator or liquidators, of it or of all or
any part of its property; or
(6) any other Event of Default provided in the applicable
resolution of the Board of Directors of the Company or in the
supplemental indenture under which such series of Securities is
issued, as the case may be, as contemplated by Section 3.1.
If an Event of Default with respect to Securities of any series at the
time Outstanding shall have occurred and be continuing, then and in each and
every such case, unless the principal of all the Securities of such series
shall have already become due and payable, either the Trustee for such series
or the Holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding hereunder, by notice in writing to
the Company and the Guarantor (and to the Trustee if given by the Holders), may
declare the principal amount (or, if the Securities of such series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all the Securities of such series to
be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, notwithstanding anything
contained to the contrary in this Indenture or in the Securities of such
series. The provisions of the foregoing sentence, however, are subject to the
condition that if, at any time after the principal amount (or if the Securities
of such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of the
Securities of any series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the following events shall occur:
(a) the Company or the Guarantor shall pay or shall
deposit with the Trustee for such series a sum sufficient to pay in
the currency or currency unit in which the Securities of such series
are payable (except as otherwise specified as contemplated by Section
3.1 for the Securities of such series and except as provided in
Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture):
-43-
<PAGE> 50
(i) all matured installments of interest, if any,
upon all the Securities of such series,
(ii) the principal of, and premium, if any, on, all
Securities of such series that shall have become due otherwise
than by acceleration (with interest on such principal and
premium, if any, and, if payment of the same is enforceable
under applicable law, on overdue installments of interest, at
the Overdue Rate or Yield to Maturity (in the case of Original
Issue Discount Securities) applicable to such series to the
date of such payment or deposit), and
(iii) all amounts payable to the Trustee pursuant to
Section 9.6; and
(b) any and all defaults under this Indenture with
respect to such series of Securities, other than the nonpayment of
principal of and accrued interest on Securities of such series that
shall have become due by acceleration, shall have been remedied, cured
or waived, or provision shall have been made therefor to the
satisfaction of the Trustee;
then and in every such case, the Holders of a majority in aggregate principal
amount of the Securities of such series then Outstanding, by written notice to
the Company and the Guarantor and to the Trustee, may waive all defaults and
its consequences; but no such waiver shall extend to or shall affect any
subsequent default, or shall impair any right consequent thereon.
If the Trustee shall have proceeded to enforce any right under this
Indenture or such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the Guarantor and the Trustee shall be restored to their several positions and
rights hereunder, and all rights, remedies and powers of the Company, the
Guarantor and the Trustee shall continue as though no such proceedings had been
taken.
Section 8.2 Collection of Indebtedness by Trustee. The Company
covenants that if:
(a) default shall occur in payment of any installment of
interest on any Security of any series, and such default shall have
continued for a period of 30 days,
(b) default shall occur in the payment of the principal
of, or premium, if any, on, any Security of
-44-
<PAGE> 51
any series upon maturity of the Securities of that series, or
(c) default shall occur in the making or satisfaction of
any sinking fund payment or analogous obligation when the same becomes
due by the terms of the Securities of any series;
then, upon demand of the Trustee for such series, the Company will pay to the
Trustee, for the benefit of the Holder of any such Security (or Holders of any
such series of Securities in the case of clause (c) above) and the Holders of
any Coupons appertaining thereto the whole amount that then shall have become
due and payable on any such Security (or Securities of any such series in the
case of clause (c) above) and matured Coupons, if any, appertaining thereto for
the principal, premium, if any, and interest, if any, with interest upon the
overdue principal and premium, if any, and, as far as payment of the same is
enforceable under applicable law, on overdue installments of interest, at the
Overdue Rate or Yield to Maturity (in the case of Original Issue Discount
Securities) applicable to any such Security (or Securities of any such series
in the case of clause (c) above); and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, and any
further amounts payable to the Trustee pursuant to the provisions of Section
9.6.
If the Company shall fail to pay such amounts upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any actions or proceedings at law or in equity for
the collection of the sums so due and unpaid and may prosecute any such action
or proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company, the Guarantor or any other obligor on such
Security (or Securities of any such series in the case of clause (c) above) and
Coupons and collect in the manner provided by law out of the property of the
Company, the Guarantor or any other obligor on such Security (or Securities of
any such series in the case of clause (c) above) and Coupons wherever situated
the moneys adjudged or decreed to be payable.
The Trustee for any series of the Securities shall be entitled and
empowered, either in its own name as trustee of an express trust, or as
attorney-in-fact for the Holders of any of the Securities of such series and
for the Holders of any Coupons appertaining thereto, or in both such
capacities, to file such proof of debt, amendment of proof of debt, claim,
petition or other document as may be necessary or advisable in order to have
the claims of the Trustee and of the Holders of Securities of such series and
the Holders of any Coupons appertaining thereto allowed in any equity
receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization
or other similar
-45-
<PAGE> 52
proceedings, or any judicial proceedings, relative to the Company, the
Guarantor or any other obligor on the Securities of such series and any Coupons
appertaining thereto or to its creditors or its property. The Trustee for each
series of the Securities is hereby irrevocably appointed (and the successive
Holders of the Securities of such series and the Holders of any Coupons
appertaining thereto, by taking and holding the same, shall be conclusively
deemed to have so appointed the Trustee) the true and lawful attorney-in-fact
of the Holders of the Securities of such series and the Holders of any Coupons
appertaining thereto, with authority to make or file in the names of the
Holders of the Securities of such series and the Holders of any Coupons
appertaining thereto or on behalf of all the Holders of the Securities of all
series and the Holders of any Coupons appertaining thereto for which it is
Trustee, any proof of debt, amendment of proof of debt, claim, petition or
other document in any such proceedings and to receive payment of any sums
becoming distributable on account thereof, and to execute any other papers and
documents and do and perform any and all acts and things for or on behalf of
such Holders of the Securities of such series and the Holders of any Coupons
appertaining thereto, as may be necessary or advisable in the opinion of the
Trustee in order to have the claims of the Holders of Securities of such series
and the Holders of any Coupons appertaining thereto against the Company, the
Guarantor or any other obligor on the Securities of such series and any Coupons
appertaining thereto and/or its property allowed in any such proceedings, and
to receive payment of or on account of such claims. Nothing herein contained,
however, shall be deemed to authorize or empower the Trustee to consent to or
accept or adopt, on behalf of any Holder of Securities of any series or any
Holder of any Coupons appertaining thereto, any plan of reorganization or
readjustment of the Company, the Guarantor or any other obligor on the
Securities of any series and any Coupons appertaining thereto, or, by other
action of any character in any such proceeding, to waive or change in any way
any right of any Holder of any Security of any series or any Holder of any
Coupons appertaining thereto even though it may otherwise be entitled so to do
under any present or future law.
All rights of action and of asserting claims under this Indenture, or
under the Securities of any series or any Coupons appertaining thereto, may be
enforced by the Trustee for such series without the possession of any of the
Securities of such series or any Coupons appertaining thereto, or the
production thereof on any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall be for
the ratable benefit of the Holders of the Securities or Coupons in respect of
which such action was taken.
Section 8.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee for the Securities of any
-46-
<PAGE> 53
series under or pursuant to, or as authorized or permitted by, this Article 8,
together with any other sums held by the Trustee (as such) hereunder (other
than sums held in trust for the benefit of the Holders of particular Securities
or Coupons), shall be applied as follows at the date fixed by the Trustee for
distribution of such moneys, upon presentation (except in respect of
subdivision FIRST below) of the several Securities and any Coupons appertaining
thereto with respect to which such moneys were collected, and stamping thereon
of an appropriate legend respecting the payment, if only partially paid, or
upon the surrender thereof, if fully paid:
FIRST: To the payment of all amounts due the Trustee pursuant
to the provisions of Section 9.6;
SECOND: If the principal of such Outstanding Securities shall
not have become due and shall not be unpaid, to the payment of the
interest, if any, on the Securities of such series in the order of
maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee), so far
as it may be enforceable under applicable law, upon the overdue
installments at the Overdue Rate or Yield to Maturity (in the case of
Original Issue Discount Securities) applicable to such series, such
payments to be made ratably to the persons entitled thereto without
discrimination or preference;
THIRD: If the principal of such Outstanding Securities shall
have become due by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Securities of such series
for principal, premium, if any, and interest, if any, with interest
upon any overdue principal and premium, if any, and also (to the
extent that such interest has been collected by the Trustee), so far
as payment of the same is enforceable under applicable law, upon any
overdue installments of interest, if any, at the Overdue Rate or Yield
to Maturity (in the case of Original Issue Discount Securities)
applicable to such series; and, if such moneys shall be insufficient
to pay in full the whole amount so due and unpaid upon the Securities
of such series then to the payment of such principal, premium, if any,
and interest, if any, without preference or priority of principal, and
premium, if any, over interest, or of interest, if any, over
principal, and premium, if any, or of any installment of interest, if
any, over any other installment of interest, if any, or of any
Security of such series over any other Security of such series, or of
any Coupon appertaining thereto over any other Coupon appertaining
thereto, ratably to the aggregate
-47-
<PAGE> 54
of such principal, premium, if any, and interest, if any;
FOURTH: To the payment of all other amounts payable by the
Company or the Guarantor under the terms of this Indenture; and
FIFTH: To the payment of the surplus, if any, to the Company,
the Guarantor, their respective successors or assigns or to whosoever
may be lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct.
Section 8.4 Limitation on Suits on Indenture; No Limitation on Suits
on Securities. No Holder of any Security of any series or Holder of any
Coupons appertaining thereto shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee (or other similar official), or for any
other remedy hereunder, unless an Event of Default shall have occurred and be
continuing and such Holder previously shall have given to the Trustee for such
series written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee for such series to institute
such action, suit or proceeding in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or proceeding. It is understood and intended, and shall be expressly
covenanted by the taker and Holder of every Security and by the taker and
Holder of any Coupon appertaining thereto with every other taker and Holder of
any Security and of any Coupon appertaining thereto and the Trustee for the
Securities of each series, that no one or more Holders of Securities of any
series or of any Coupons appertaining thereto shall have any right in any
manner whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder of Securities of
such series or of any Coupons appertaining thereto, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of such series
or of any Coupons appertaining thereto. For the protection and enforcement of
the provisions of this Section 8.4, each Holder of Securities of any series or
of any Coupons appertaining thereto and the Trustee for such series shall be
entitled to such relief as can be given either at law or in equity.
-48-
<PAGE> 55
Nothing contained in this Indenture, in the Securities of any series,
or in any Coupon appertaining thereto, shall affect or impair the obligations
of the Company and the Guarantor, which are unconditional and absolute, to pay
the principal of, and premium or interest, if any, on, the Securities of such
series at the places, times and rates, in the amounts and in the coin, currency
or currency unit therein and herein prescribed or affect or impair the right of
action, which is also absolute and unconditional, of any Holder of any Security
or Coupon, if any, to institute suit to enforce such payment at the due dates
expressed in such Security or Coupon, if any, unless such Holder consents
thereto.
Section 8.5 Remedies Cumulative; Delay Not To Impair Rights. All
powers and remedies given by this Article 8 to the Trustee for any series of
the Securities or to the Holders of such Securities or any Coupons appertaining
thereto shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or the Holders of such Securities or any Coupons appertaining thereto
by judicial proceedings or otherwise to enforce the performance or observance
of the covenants and agreements contained in this Indenture. No delay or
omission of the Trustee or of any Holder of any of the Securities of such
series or any Coupons appertaining thereto to exercise any right or power
accruing upon any default shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein.
Subject to the provisions of Section 8.4, every power and remedy given by this
Article 8 or by law to the Trustee for any series of the Securities or to
Holders of the Securities of such series or any Coupons appertaining thereto
may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee for such series or by Holders of such Securities or any Coupons
appertaining thereto. No waiver of any default hereunder shall extend to or
affect any other or subsequent default or impair any rights or remedies
consequent thereon.
Section 8.6 Directions by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of any series at the
time Outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee for such
series or exercising any trust or power conferred on the Trustee.
Section 8.7 Undertakings for Costs. All parties to this Indenture
agree and each Holder of any Security and each Holder of any Coupon by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or any suit against the Trustee for the Securities of any
series for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to
-49-
<PAGE> 56
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant. The provisions of this Section
8.7, however, shall not apply to any suit instituted by the Trustee for the
Securities of any series, to any suit instituted by any Holder of Securities of
any series, or group of such Holders holding in the aggregate more than 10% in
aggregate principal amount of the Outstanding Securities of such series, or any
suit instituted by any Holder of Securities or Coupons for the enforcement of
the payment of the principal of, or premium or interest, if any, on, any
Security or Coupon on or after the due date expressed in such Security or
Coupon, on or after the date fixed for redemption or after such Security or
Coupons shall have become due by declaration.
Section 8.8 Judgment Currency. If, for the purpose of obtaining a
judgment in any court with respect to any obligation of the Company or the
Guarantor hereunder or under any Security or Coupon, it shall become necessary
to convert into any other currency or currency unit any amount in the currency
or currency unit due hereunder or under such Security or Coupon, then such
conversion shall be made at the Conversion Rate as in effect on the date the
Company or the Guarantor shall make payment to any Person in satisfaction of
such judgment. If pursuant to any such judgment, conversion shall be made on a
date other than the date payment is made and there shall occur a change between
such Conversion Rate and the Conversion Rate as in effect on the date of
payment, the Company and the Guarantor agree to pay such additional amounts (if
any) as may be necessary to ensure that the amount paid is the amount in such
other currency or currency unit which, when converted at the Conversion Rate as
in effect on the date of payment or distribution, is the amount then due
hereunder or under such Security or Coupon. Any amount due from the Company
under this Section 8.8 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Security or Coupon. In no event, however, shall
the Company or the Guarantor be required to pay more in the currency or
currency unit due hereunder or under such Security or Coupon at the Conversion
Rate as in effect when payment is made than the amount of currency or currency
unit stated to be due hereunder or under such Security or Coupon so that in any
event the Company's or the Guarantor's obligations hereunder or under such
Security or Coupon will be effectively maintained as obligations in such
currency or currency unit.
For purposes of this Section 8.8, "Conversion Rate" shall mean the
spot rate at which, in accordance with the normal banking procedures, the
currency or currency unit into which an amount due hereunder or under any
Security or Coupon is to be converted could be purchased with the currency or
currency unit due hereunder or under any Security or Coupon from major banks
-50-
<PAGE> 57
located in the United States or any other principal market for such purchased
currency or currency unit.
Section 8.9 Notice of Default. Within 90 days after the occurrence
of a default hereunder with respect to the Securities of any series, the
Trustee for such series shall transmit by mail to all Holders of Securities of
such series, in the manner and to the extent provided in Section 7.4(c), and
give to all Holders of Securities of such series and of Coupons, if any,
appertaining thereto as otherwise provided in Section 14.3, notice of such
default hereunder with respect to such series known to the Trustee, unless such
default shall have been cured or waived. Notwithstanding the foregoing, except
in the case of a default in the payment of the principal of, or premium or
interest, if any, on, any Security of such series or in the payment of any
sinking fund installment or analogous obligation with respect to such series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Securities of
such series and of Coupons, if any, appertaining thereto. In the case of any
default of the character specified in Section 8.1(3), no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section 8.9, the terms "default" means any event that is, or
after notice or lapse of time or both would become, an Event of Default.
ARTICLE 9
CONCERNING THE TRUSTEE
Section 9.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
-51-
<PAGE> 58
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, that a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section 9.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee for the Securities of any series shall
not be liable with respect to any action taken or omitted to be taken
by it in good faith in accordance with the direction of the Holders of
Securities of such series pursuant to Section 8.6 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to Securities of
such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 9.1.
Section 9.2 Certain Rights of Trustee. Except as otherwise provided
in Section 9.1:
(a) the Trustee may rely, and shall be protected in acting or
refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request,
-52-
<PAGE> 59
direction, consent, order, bond, debenture, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company or the
Guarantor mentioned herein shall be sufficiently evidenced by an Officers'
Certificate and any resolution of the Board of Directors of the Company or the
Guarantor, as the case may be, may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel, and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee for the Securities of any series shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Holders of
Securities of such series pursuant to this Indenture, unless such Holders of
Securities shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken by it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
Section 9.3 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the certificates of
authentication, shall be
-53-
<PAGE> 60
taken as the statements of the Company or the Guarantor, as the case may be,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities or Coupons. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
Section 9.4 May Hold Securities. The Trustee, any Paying Agent,
Securities Registrar, Authenticating Agent or any other agent of the Company,
the Guarantor or the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities or Coupons and, subject to Section
9.7 and Section 9.12, may otherwise deal with the Company and the Guarantor
with the same rights it would have if it were not Trustee, Paying Agent,
Securities Registrar, Authenticating Agent or such other agent.
Section 9.5 Money Held in Trust. Money in any currency or currency
unit held by the Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 9.6 Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee for the Securities of each
series from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee for the Securities of each series upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee for the Securities of each
series for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against
any claim or liability in
-54-
<PAGE> 61
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company
under this Section 9.6, the Trustee for the Securities of any series shall have
a lien prior to the Securities of all series upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the payment
of principal of, and premium or interest, if any, on, Securities of any series.
The obligations of the Company under this Section 9.6 to compensate
and indemnify the Trustee and to pay and reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness under the
Indenture and shall survive the satisfaction and discharge of this Indenture.
Section 9.7 Disqualification; Conflicting Interests. The Trustee for
the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period of
time provided for therein. In determining whether the trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded (i) the
Trustee's interest under this Indenture with respect to Securities of any
particular series of Securities other than that series and (ii) any interest of
the Trustee under the Indenture, dated as of May 1, 1985, between the Company,
the Guarantor, as Guarantor, and Wachovia Bank and Trust Company, N.A., as
Trustee, as amended or supplemented, and the securities issued thereunder.
Nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in Section 310(b) of the Trust Indenture Act.
Section 9.8 Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder for the Securities of each series, which shall
be at all times either:
(1) a corporation organized and doing business under the
laws of the United States or of any state or territory thereof or the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by federal,
state, territory or District of Columbia authority; or
(2) a corporation or other Person organized and doing
business under the laws of a foreign government that is permitted to
act as Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of such
foreign government or a political subdivision thereof substantially
equivalent to
-55-
<PAGE> 62
supervision or examination applicable to United States institutional
trustees, in either case having a combined capital and surplus of at
least $50,000,000. If such corporation publishes reports of condition
at least annually, pursuant to law or to requirements of its
supervising or examining authority, then for the purposes of this
Section 9.8, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the
Trustee for the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section 9.8, it shall resign
immediately in the manner and with the effect hereinafter specified in
this Article 9. Neither the Company or the Guarantor nor any Person
directly or indirectly controlling, controlled by or under common
control with the Company or the Guarantor shall serve as Trustee for
the Securities of any series issued hereunder.
Section 9.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of
any series and no appointment of a successor Trustee for such series pursuant
to this Article shall become effective until the acceptance of appointment by
the successor Trustee under Section 9.10.
(b) The Trustee, or any trustee or trustees hereafter appointed,
for the Securities of any series may resign at any time with respect to one or
more or all such series of Securities by giving written notice thereof to the
Company and the Guarantor. If an instrument of acceptance by a successor
Trustee for Securities of any series shall not have been delivered to the
Trustee for such series within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee for such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of one or more series (each voting as a class) or all series at the
time Outstanding for which the Trustee is serving as Trustee may at any time
remove the Trustee with respect to any or all such series, as the case may be,
and nominate with respect to any or all such series, as the case may be, a
successor Trustee by written notice of such action to the Company and the
Guarantor, the Trustee for the applicable series and the nominee successor
Trustee. The nominee Trustee shall be deemed appointed as successor Trustee
with respect to any or all of such series, as the case may be, unless within 10
days after such nomination the Company objects thereto, in which case the
Trustee so removed or any Holder of Securities of the applicable
-56-
<PAGE> 63
series may petition any court of competent jurisdiction for an appointment of a
successor Trustee with respect to such series.
(d) If at any time:
(1) the Trustee for the Securities of any series shall
fail to comply with Section 310(b) of the Trust Indenture Act with
respect to such series after written request therefor by the Company
or by any Holder of Securities who has been a bona fide Holder of a
Security or Securities of such series for at least six months, unless
the Trustee's duty to resign is stayed in accordance with the
provisions of Section 310(b) of the Trust Indenture Act,
(2) the Trustee for the Securities of any series shall
cease to be eligible under Section 9.8 with respect to such series and
shall fail to resign after written request therefor by the Company or
by any Holder of Securities of such series, or
(3) the Trustee for the Securities of any series shall
become incapable of acting with respect to such series, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may remove the Trustee with respect to such
series, or (ii) subject to Section 8.7, any Holder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee for such series.
(e) The Company shall give notice of such resignation and each
removal of the Trustee and each appointment of a successor Trustee for the
Securities of any series by providing notice of such event to the Holders of
Securities of such series in the manner and to the extent provided in Section
14.3. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Section 9.10 Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and the Guarantor 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;
-57-
<PAGE> 64
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property or money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 9.6. Upon request of
any such successor Trustee, the Company and the Guarantor shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee for the
Securities of one or more (but not all) series, the Company, the Guarantor, the
predecessor Trustee and each successor Trustee for the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee for the Securities of any series as to which the predecessor Trustee is
not retiring shall continue to be vested in the predecessor Trustee, and shall
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee. Nothing herein or in such supplemental indenture shall
constitute such Trustee's co-trustees of the same trust and each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from
-58-
<PAGE> 65
any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee for a series of Securities shall accept its
appointment unless at the time of such acceptance such successor Trustee shall
with respect to such series be qualified and eligible under this Article.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.10, the Company shall provided notice of the succession of such
Trustee hereunder to the Holders of Securities of any applicable series and to
the Holders of Coupons, if any, appertaining thereto in the manner and the
extent provided in Section 14.3. If the Company fails to provide such notice
within 10 days after the acceptance of appointment by the successor Trustee,
the successor Trustee shall cause such notice to be given at the expense of the
Company.
Section 9.11 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee for the Securities of any
series may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Trustee, shall be the successor of
the Trustee for such series hereunder, provided such corporation shall, with
respect to such series, be otherwise qualified and eligible under this Article,
to the extent operative, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. If any Securities of one
or more series shall have been authenticated, but not delivered, by the Trustee
for such series then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities; and if at that time
any of such Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of the Trustee or
such successor to the Trustee.
Section 9.12 Preferential Collection of Claims Against Company.
(a) Subject to subsection (b) of this Section 9.12, if the Trustee
for the Securities of any series shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company or any other obligor on the
Securities of such series within three months before a default, as defined in
subsection (c) of this Section 9.12, or after such a default, then, unless and
until such default shall be cured, the Trustee shall set apart and hold a
special account for the benefit of the Trustee individually, the Holders of the
Securities of such
-59-
<PAGE> 66
series, the Holders of the Coupons, if any, appertaining thereto and the
holders of other indenture securities (as defined in subsection (c) of this
Section 9.12) the following:
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such
three-month period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this Section
9.12(a), or from the exercise of any right of setoff which the Trustee
could have exercised if a petition in bankruptcy had been filed by or
against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three-month period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the rights, if
any, of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the Company) who
is liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third person, and (iii) distributions
made in cash, securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in cases or
proceedings for reorganization or for any related or similar purpose
pursuant to the federal Bankruptcy Code or applicable state law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was so
held before the beginning of such three-month period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by
it as security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was
-60-
<PAGE> 67
so received the Trustee had no reasonable cause to believe that a
default, as defined in subsection (c) of this Section 9.12, would
occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C) above, against the release of any property held
as security for such claim provided in paragraphs (B) or (C) above, as
the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D) above, property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any preexisting claim of the Trustee as such creditor, such claim
shall have the same status as such preexisting claim.
If the Trustee for the Securities of any series shall be required to
account, the funds and property held in such special account and the proceeds
thereof shall be apportioned among the Trustee, the Holders of the Securities
of such series, the Holders of the Coupons, if any, appertaining thereto and
the holders of other indenture securities in such manner that the Trustee, such
Holders and the holders of other indenture securities realize, as a result of
payments from such special account and payments of dividends on claims filed
against the Company in bankruptcy or receivership or in cases or proceedings
for reorganization or for any related or similar purpose pursuant to the
federal Bankruptcy Code or other applicable federal or state law, the same
percentage of their claims. The percentage referred to in the preceding
sentence shall be determined before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the claims of the
Trustee, the Holders of such Securities, the Holders of the Coupons, if any,
appertaining thereto and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or receivership or in cases or
proceedings for reorganization or for any related or similar purpose pursuant
to the federal Bankruptcy Code or other applicable federal or state law, but
after crediting thereon receipts on account of the indebtedness represented by
their claims from all sources other than from such dividends and from the funds
and property so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or in cases or proceedings
for reorganization or for any related or similar purpose pursuant to the
federal Bankruptcy Code or other applicable
-61-
<PAGE> 68
federal or state law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or cases or proceedings for reorganization or for any related or
similar purpose is pending shall have jurisdiction (i) to apportion among the
Trustee, the Holders of such Securities, the Holders of the Coupons, if any,
appertaining thereto and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held
in such special account and proceeds thereof, or (ii) in lieu of such
apportionment in whole or in part, to give the provisions of this paragraph due
consideration in determining the fairness of the distributions to be made to
the Trustee, the Holders of such Securities, the Holders of the Coupons, if
any, appertaining thereto and the holders of other indenture securities with
respect to their claims, in which event it shall not be necessary to liquidate
or to appraise the value of any securities or other property held in such
special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee that has resigned or been removed with respect to any
series of the Securities after the beginning of such three-month period shall
be subject to the provisions of this subsection with respect to such series as
though such resignation or removal had not occurred. If any Trustee has so
resigned or been removed before the beginning of such three-month period, it
shall be subject to the provisions of this subsection with respect to such
series if and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee
had continued as Trustee for such series, occurred after the beginning
of such three-month period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section 9.12 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
-62-
<PAGE> 69
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the purpose
of preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders
of the applicable series of Securities and the Holders of the Coupons,
if any, appertaining thereto, at the time and in the manner provided
in this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent or depositary, trustee under an indenture, or other
similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c) of this Section 9.12;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptance or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section 9.12.
(c) For the purposes of this Section 9.12 only:
(1) The term "default" means any failure to make payment
in full of the principal of, or interest on, any of the Securities of
the applicable series or upon the other indenture securities when and
as such principal or interest becomes due and payable.
(2) The term "other indenture securities" means
securities upon which the Company is an obligor (as defined in the
Trust Indenture Act of 1939) that are outstanding under any other
indenture (i) under which the Trustee is also trustee; (ii) which
contains provisions substantially similar to the provisions of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account.
-63-
<PAGE> 70
(3) The term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and payable upon
demand.
(4) The term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by documents
evidencing title to, possession of or lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the
Securities, including the Guarantor.
Section 9.13 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, upon a Company Request, there shall
be an authenticating agent (the "Authenticating Agent") appointed, for such
period as the Company shall elect, by the Trustee for such series of Securities
to act as its agent on its behalf and subject to its direction in connection
with the authentication and delivery of each series of Securities for which it
is serving as Trustee. Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of his Indenture and
shall be valid and obligatory for all purposes as if authenticated by such
Trustee. For all purposes of this Indenture (except in the case of original
issuance and the issuance of Securities in replacement of lost, stolen,
mutilated or destroyed Securities), the authentication and delivery of
Securities by any Authenticating Agent pursuant to this Section 9.13 shall be
deemed to be the authentication and delivery of such Securities by the Trustee,
and whenever this Indenture requires (except in the case of original issuance
and the issuance of Securities in replacement of lost, stolen, mutilated or
destroyed Securities) that the Trustee shall authenticate and deliver
Securities, such authentication and delivery by an Authenticating Agent shall
be deemed to be authentication and delivery by the Trustee. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States or of any state thereof,
authorized under such laws to exercise corporate trust powers, having combined
capital and surplus of
-64-
<PAGE> 71
at least $50,000,000 and subject to supervision or examination by federal or
state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee for such series or such Authenticating
Agent. Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the
applicable Trustee and to the Company and the Guarantor. The Trustee for any
series of Securities may at any time terminate the agency of any Authenticating
Agent for such series by giving written notice of termination to such
Authenticating Agent and to the Company and the Guarantor.
Upon receiving such a notice of resignation or upon such a
termination, or if at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 9.13 with respect to
one or more or all series of Securities, the Trustee for such series shall upon
Company Request appoint a successor Authenticating Agent, and the Company shall
provide notice of such appointment to all Holders of Securities of such series
or any Coupons appertaining thereto in the manner and to the extent provided in
Section 14.3. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein. The Trustee for the
Securities of such series agrees to pay to the Authenticating Agent for such
series from time to time reasonable compensation for its services, and the
Trustee shall be entitled to be reimbursed for such payment subject to the
provisions of Section 9.6. The Authenticating Agent for the Securities of any
series shall have no responsibility or liability for any action taken by it as
such at the direction of the Trustee for such series.
ARTICLE 10
CONCERNING THE HOLDERS OF SECURITIES
Section 10.1 Action by Holders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of
-65-
<PAGE> 72
taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Holders in person or by agent or proxy appointed in
writing, or (b) by the record of Holders voting in favor thereof at any meeting
of such Holders duly called and held in accordance with the provisions of
Article 11, or (c) by combination of such instrument or instruments and any
such record of such a meeting of Holders. The Company may set a record date
for purposes of determining the identity of Holders entitled to vote or consent
to any action by vote or consent authorized or permitted under this Indenture,
which record date shall be the later of 30 days before the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 7.1 of this Indenture before such application. If
the record date is fixed, those persons who were Holders of Securities at such
record date (or their duly designated proxies), and only those persons, shall
be entitled to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be Holders
after such record date.
Section 10.2 Proof of Execution of Instruments by Holders of
Securities. Subject to the provisions of Sections 9.1, 9.2 and 11.5, proof of
the execution of any instrument by a Holder of a Security or of any Coupon (or
his agent or proxy) and proof of the holding by any person of any of the
Securities shall be sufficient if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or
other officer authorized to take acknowledgments of deeds that the
person executing such instrument acknowledged to him the execution
thereof or by an affidavit of a witness to such execution sworn to
before any such notary or other such officer. Where such execution is
by an officer of a corporation or association or a member of a
partnership on behalf of such corporation, association or partnership
or by any other person acting in a representative capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
The ownership of Registered Securities of any series shall be proved
by the Securities Register for such series or by a certificate of the
Securities Registrar for such series; the ownership of Unregistered Securities
of any series and Coupons shall be proved by proof of possession reasonably
satisfactory to the Trustee.
The record of any Holders' meeting shall be proved in the manner
provided in Section 11.6.
-66-
<PAGE> 73
Section 10.3 Persons Deemed Owners. The Company, the Guarantor, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.8), if such Registered Security is a
Fully Registered Security, interest, if any, on, such Registered Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
none of the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee shall be affected by notice to the contrary. The
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Holder of any Unregistered Security and the Holder
of any Coupon, whether or not the Security to which such Coupon appertained be
registered, as the absolute owner of such Security or Coupon for the purposes
of receiving payment thereof or on account thereof and for all other purposes
whatsoever whether or not such Security or Coupon be overdue, and neither the
Company, the Guarantor, the Trustee, any Paying Agent nor any Security
Registrar shall be affected by notice to the contrary. All such payments so
made to any Holder for the time being, or upon his order, shall be valid, and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge
the liability for moneys payable upon such Security or Coupon.
Section 10.4 Revocation of Consents; Future Holders Bound. At any
time before (but not after) the evidencing to the Trustee, as provided in
Section 10.1, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security, the number, letter, or
other distinguishing symbol of which is shown by the evidence to be included in
the Securities the Holders of which have consented to such action, may, by
filing written notice with the Trustee at its principal office and upon proof
of holding as provided in Section 10.2, revoke such action so far as concerns
such Security. Otherwise, any such action taken by the Holder of any Security
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Security and any Coupon appertaining thereto and of any
Securities and Coupons issued in exchange or substitution therefor, whether or
not any notation in regard thereto is made upon such Security or Coupons or
such other Security or Coupons.
ARTICLE 11
HOLDERS' MEETINGS
Section 11.1 Purposes of Meetings. A meeting of Holders of Securities
of any or all series may be called at any time and from time to time pursuant
to the provisions of this Article 11 for any of the following purposes:
-67-
<PAGE> 74
(1) to give any notice to the Company, to the Guarantor
or to the Trustee for the Securities of such series, or to give any
directions to the Trustee for such series, or to consent to the
waiving of any default hereunder and its consequences, or to take any
other action authorized to be taken by Holders pursuant to any of the
provisions of Article 9;
(2) to remove the Trustee for such series and nominate a
successor Trustee pursuant to the provisions of Article 9;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
12.1(g); or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal amount
of the Securities of any one or more or all series, as the case may
be, under any other provision of this Indenture or under applicable
law.
Section 11.2 Call of Meetings by Trustee. The Trustee for the
Securities of any series may at any time call a meeting of Holders of
Securities of such series to take any action specified in Section 11.1, to be
held at such time and at such place as the Trustee for such series shall
determine. Notice of every meeting of the Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given to Holders of
Securities of such series in the manner and to the extent provided in Section
14.3. Such notice shall be given not less than 20 nor more than 90 days before
the date fixed for the meeting.
Section 11.3 Call of Meetings by Company or Holders. If at any time
the Company, the Guarantor or the Holders of at least 10% in aggregate
principal amount of the Outstanding Securities of any or all series, as the
case may be, shall have requested the Trustee for such series to call a meeting
of Holders of Securities of any or all series, as the case may be, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee for such series shall not have given the notice of
such meeting within 20 days after receipt of such request, then the Company or
the Guarantor or such Holders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section
11.1, by giving notice thereof as provided in Section 11.2.
Section 11.4 Qualifications for Voting. To be entitled to vote at any
meeting of Holders, a person shall be (a) a Holder of one or more Securities
with respect to which such meeting is
-68-
<PAGE> 75
being held or (b) a person appointed by an instrument in writing as proxy by
such Holder. The only persons who shall be entitled to be present or to speak
at any meeting of Holders shall be the persons entitled to vote at such meeting
and their counsel and any representatives of the Trustee for the Securities of
the series with respect to which such meeting is being held and its counsel and
any representatives of the Company or the Guarantor and their counsel.
Section 11.5 Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee for the Securities of any series may make such
reasonable regulations as it may deem advisable for any meeting of Holders of
the Securities of such series, in regard to proof of the holding of Securities
of such series and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall determine to be
necessary or advisable.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or the Guarantor or by Holders of the Securities of such series as
provided in Section 11.3, in which case the Company or the Guarantor or the
Holders calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by the vote of the holders of a majority in principal
amount of the Securities represented at the meeting.
Subject to the proviso in the definition of "Outstanding," at any
meeting each Holder of Securities with respect to which such meeting is being
held (or proxy therefor) shall be entitled to one vote for each 1,000 (in the
currency or currency unit in which such Securities are denominated) principal
amount (in the case of Original Issue Discount Securities, such principal
amount to be determined as provided in such definition of "Outstanding") of
Securities held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any such Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of
Securities of such series held by him or instruments in writing duly
designating him as the person to vote on behalf of other Holders of such
series. At any meeting of Holders, the presence of persons holding or
representing Securities with respect to which such meeting is being held in an
aggregate principal amount sufficient to take action on the business for the
transaction of which such meeting was called shall constitute a quorum, but, if
less than a quorum is present, the persons holding or representing a majority
in aggregate principal amount of such Securities represented at the
-69-
<PAGE> 76
meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present. Any meeting of Holders of
Securities with respect to which a meeting was duly called pursuant to the
provisions of Section 11.2 or Section 11.3 may be adjourned from time to time
by the holders of a majority in principal amount of the Securities represented
at the meeting, whether or not constituting a quorum, and the meeting may be
held as so adjourned without further notice.
Section 11.6 Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures of
such Holders or of their representatives by proxy and the serial number or
numbers of the Securities held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in triplicate
of all votes cast at the meeting. A record in triplicate of the proceedings of
each meeting of Holders shall be prepared by the secretary of the meeting and
there shall be attached to the record the original reports of the inspectors of
votes on any vote by ballot taken at such meeting and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that notice was mailed as provided in Section 11.2. The
record shall show the serial numbers of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting, and one of
the triplicates shall be delivered to each of the Company, the Guarantor and
the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 11.7 No Delay of Rights by Meeting. Nothing contained in this
Article 11 shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Holders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any
right or rights conferred upon or reserved to the Trustee or to the Holders
under any of the provisions of this Indenture or of the Securities of any
series.
ARTICLE 12
SUPPLEMENTAL INDENTURES
Section 12.1 Supplemental Indentures. The Company, the Guarantor and
the Trustee for the Securities of any or all series may from time to time and
at any time enter into an
-70-
<PAGE> 77
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) if deemed appropriate by the Company or the
Guarantor, as the case may be, or required by law, to evidence the
succession of another corporation to the Company or to the Guarantor,
or respective successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Company or the Guarantor under the Indenture and the Securities;
(b) to add to the covenants of the Company or the
Guarantor such further covenants, restrictions or conditions for the
protection of the Holders of all or any series of Securities and the
Coupons, if any, appertaining thereto as their Board of Directors
respectively and the Trustee for such series shall consider to be
necessary or advisable for the protection of the Holders of such
Securities;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture that may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture that shall
not be inconsistent with the provisions of this Indenture and that
shall not adversely affect the interests of the Holders of any
Securities or the Coupons, if any, appertaining thereto in any
material respect;
(d) to establish the form or terms of Securities of any
series and the Coupons, if any, appertaining thereto as permitted by
Section 3.1;
(e) to permit payment in the United States of principal,
premium or interest on Unregistered Securities or of interest on
Coupon Securities;
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series or to add to or change any of the
provisions of this Indenture necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 9.10; or
(g) if and to the extent authorized by the consent
(evidenced as provided in Section 10.1) of the Holders of at least a
majority in principal amount of the Outstanding Securities of each
series affected by
-71-
<PAGE> 78
such supplemental indenture, to make such other changes in or
additions to or eliminations from the Indenture as such Holders, the
Guarantor and the Company may deem necessary or advisable; provided,
however, that no such supplemental indenture shall (i) without the
consent of the Holder of each Outstanding Security of each such series
affected thereby:
(1) change the Stated Maturity of the principal
of, or installment of interest, if any, on, any Security of
such series, or reduce the principal amount thereof or the
premium, if any, or the rate of interest, if any, thereon or
change the Place of Payment, or the currency or currency unit
in which any Security of such series or any premium or
interest therein is payable, or reduce the amount of the
principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof
pursuant to Section 8.1 or adversely affect the right of
repayment, if any, at the option of the Holder, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
deprive the Holders of any Security of any of the benefits of
the Guarantee; or
(2) reduce the requirements of Section 12.5 for
quorum or voting, or reduce the percentage in principal amount
of the Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental indenture,
or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for
in this Indenture; or
(3) modify any of the provisions of this Section
12.1 or Section 6.3, except to increase any such percentage or
to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the
Holders of each Security of such series affected thereby;
or (ii) modify, without the written consent of the Trustee, the
rights, duties or immunities of the Trustee.
-72-
<PAGE> 79
It shall not be necessary for the consent of the Holders under this
Section 12.1 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Any such supplemental indenture, and this Indenture as so
supplemented, shall conform to the requirements of the Trust Indenture Act of
1939, as amended and in force at the date of execution of such supplemental
indenture.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture (a) that has expressly been included solely
for the benefit of one or more particular series of Securities and the Coupons,
if any, appertaining thereto, or (b) that modifies the rights of the Holders of
Securities of such series or any Coupons appertaining thereto with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series or any
Coupons appertaining thereto.
The Trustee with respect to any series of Securities affected by such
supplemental indenture is hereby authorized to join with the Company and the
Guarantor in the execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations that may be therein contained,
but such Trustee shall not be obligated to enter into any such supplemental
indenture which affects such Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 12.2 Notice of Supplemental Indenture. Promptly after the
execution by the Company and the appropriate Trustee of any supplemental
indenture pursuant to Section 12.1(g), the Company shall notify as provided in
Section 12.1(g) all Holders of any series of Securities and of any Coupons
appertaining thereto affected by such supplemental indenture as to the general
terms and substance of such supplemental indenture.
Section 12.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article 12, this
Indenture shall be, and shall thereafter be deemed to be, modified and amended
in accordance therewith, but only with regard to the Securities of each series
affected by such supplemental indenture, and the rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee for the
Securities of such series, the Company, the Guarantor and Holders of any
Securities of such series or of any Coupons appertaining thereto shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be, and shall thereafter be deemed to
be, part of the terms and conditions of this Indenture for any and all purposes
with
-73-
<PAGE> 80
regard to the Securities of such series and of any Coupons appertaining
thereto.
Section 12.4 Notation on Securities and Coupons. Securities of any
series (including any Coupons appertaining thereto) affected by any
supplemental indenture that are authenticated and delivered after the execution
of such supplemental indenture pursuant to the provisions of this Article 12
may bear a notation in form approved by the Trustee for such series as to any
matter provided for in such supplemental indenture. If the Company, the
Guarantor or the Trustee shall so determine, new Securities of any series and
any Coupons appertaining thereto so modified as to conform, in the opinion of
the Trustee and the Board of Directors of the Company and the Guarantor,
respectively, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company and the Guarantor,
authenticated by the Trustee and delivered in exchange for the Securities of
such series and any Coupons appertaining thereto then Outstanding.
Section 12.5 Issuance of Securities by Successor Corporation. If the
Company shall be consolidated with or merged into any other corporation or
corporations, or shall convey or transfer all or substantially all its property
as an entirety, the successor corporation formed by such consolidation or into
which the Company shall have been merged or which shall have received such
conveyance or transfer, upon causing the supplemental indenture referred to in
Section 12.1(a) to be executed and delivered, shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the party of the first part and in all of the Securities and the Coupons, if
any, appertaining thereto as obligor. Thereupon and thereafter, such successor
corporation may cause to be executed, either in its own name or in the name of
Intel Overseas Corporation, or delivered to the appropriate Trustee for
authentication, any or all of the Securities and any Coupons appertaining
thereto issuable hereunder. Upon the order of such successor corporation in
lieu of the Company, or subject to all the terms, conditions and restrictions
prescribed in this Indenture, the Trustee for the Securities of the appropriate
series shall authenticate and delivery any Securities of such series and any
Coupons appertaining thereto which shall have been previously executed and
delivered by the Company to the Trustee for authentication, and any Securities
and Coupons appertaining thereto which such successor corporation shall
thereafter, in accordance with the provisions of this Indenture, cause to be
executed and delivered to the Trustee for such purpose. Changes in phraseology
and form (but not in substance) may be made in such Securities and Coupons that
are appropriate in view of such consolidation or merger or conveyance or
transfer. All the Securities and Coupons, when issued by such successor
corporation shall in all respects have the same legal rank and benefit under
this Indenture as the Securities and the Coupons appertaining thereto
theretofore or thereafter issued,
-74-
<PAGE> 81
as though all of such Securities and Coupons had been issued as of the date of
the execution hereof.
ARTICLE 13
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 13.1 Satisfaction and Discharge. This Indenture shall cease
to be of further effect with respect to a certain series (except as to any
rights of registration of transfer or exchange of Securities herein expressly
provided for) if the Company or the Guarantor has paid or caused to be paid all
sums payable by the Company or the Guarantor hereunder with regard to such
series and if:
(a) the Company or the Guarantor shall deliver to the
Trustee for the Securities of such series for cancellation all
Securities of all series and the Coupons, if any, appertaining thereto
for which such Trustee is Trustee theretofore authenticated (other
than any Securities of such series and any Coupons that shall have
been destroyed, lost or stolen) and not theretofore cancelled, or
(b) all the Securities of all such series and the
Coupons, if any, appertaining thereto not theretofore cancelled or
delivered to the applicable Trustee for cancellation shall have become
due and payable, or are by their terms to become due and payable
within one year, or are to be called for redemption within one year
under arrangement satisfactory to the Trustee for the giving of notice
of redemption, and the Company or the Guarantor shall deposit with the
Trustee as trust funds the entire amount sufficient (or obligations of
or guaranteed as to principal and interest by, the United States of
America, which shall not contain provisions permitting the redemption
thereof at the option of the issuer thereof, the principal of, and
interest on which due, and without any reinvestment thereof, will
provide moneys that, together with the moneys, if any, deposited with
or held by the Trustee or any Paying Agent at the same time, shall be
sufficient) to pay at maturity or upon redemption all of the
Securities of all such series and the Coupons, if any, appertaining
thereto (other than any Securities and Coupons that shall have been
destroyed, lost or stolen and in lieu of or substitution for which
other Securities and Coupons shall have been authenticated and
delivered) not theretofore cancelled or delivered to the Trustee for
cancellation, including principal due or to become due to such date of
maturity or Redemption Date, as the case may be.
-75-
<PAGE> 82
Any cash received from such principal or interest payments on such obligations
deposited with the Trustee as described in paragraph (b) above, if not then
needed for such purpose, shall, to the extent practicable, be reinvested in
obligations of the type described in paragraph (b) above maturing at times and
in amounts sufficient to pay when due the principal of, and interest or
premium, if any, to become due on, Securities on and prior to such redemption
date or maturity date thereof, as the case may be, and interest earned from
such reinvestments shall be paid to the Company or the Guarantor, as received
by the Trustee, free and clear of any trust, lien or pledge.
Upon satisfaction of the above requirements, and upon receipt of a
written request from the Company or the Guarantor, the Trustee shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture
with respect to all such series (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for). The written request from the Company or the Guarantor referred to in the
preceding sentence shall be accompanied by an Officers' Certificate complying
with the provisions of Section 7.5, stating that all conditions precedent
relating to the satisfaction and discharge of the Indenture with respect to all
such series (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for) have been complied with,
and an Opinion of Counsel, complying with the provisions of Section 7.5,
stating that in the opinion of such counsel such conditions precedent have been
complied with. Thereafter, the Company shall reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities.
Section 13.2 Application of Moneys. All moneys deposited with the
Trustee pursuant to Section 13.1 shall be held in trust by the Trustee and
applied by it to the payment, either directly or through any Paying Agent for
such series (including the Company acting as its own Paying Agent), to the
Holders of the particular Securities and the Coupons, if any, appertaining
thereto for the payment or redemption of which such moneys have been deposited
with the Trustee, of all sums due and to become due thereon for principal, and
premium and interest, if any.
Section 13.3 Repayment of Moneys by Paying Agents. Except as provided
in Section 13.4, upon the satisfaction and discharge of this Indenture with
respect to the Securities of any series and the Coupons, if any, appertaining
thereto all moneys with respect to such series then held by any Paying Agent
for such series under the provisions of this Indenture shall, upon demand of
the Company or the Guarantor, be repaid to it and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
-76-
<PAGE> 83
Section 13.4 Unclaimed Moneys. Any moneys deposited with the Trustee
for the Securities of any series and the Coupons, if any, appertaining thereto
for the payment of the principal of, and premium or interest, if any, on,
Securities of such series and the Coupons, if any, appertaining thereto and
which shall not be applied but shall remain unclaimed by the Holders of
Securities of such series and the Coupons, if any, appertaining thereto under
applicable law shall be transferred by the Trustee to the appropriate Persons
in accordance with applicable laws. Thereafter, the Holder of any such
Securities or Coupons entitled to receive such payment shall look only to such
Persons for the payment thereof.
ARTICLE 14
MISCELLANEOUS PROVISIONS
Section 14.1 Limitation of Individual Liability. No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any
Security or Coupon, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company, the Guarantor or of
any successor corporation, either directly or through the Company or the
Guarantor, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise. It is expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators, stockholders,
officers or directors, as such, of the Company or the Guarantor or of any
successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or Coupons or implied therefrom. Any such personal liability of any nature,
either at common law or in equity or by constitution or statute, of, and all
such rights and claims against, every such incorporator, stockholder, officer
or director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or Coupons or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities and Coupons, if any.
Section 14.2 Successors. All the covenants, stipulations, promises
and agreements contained in this Indenture by or in behalf of the Company or
the Guarantor shall bind their successors and assigns, whether so expressed or
not.
-77-
<PAGE> 84
Section 14.3 Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, (1) if any of the Securities affected by
such event are Fully Registered Securities, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed by
first class mail, postage prepaid, to such Holders as their names and addresses
appear in the Securities Register within the time prescribed, and (2) if any of
the Securities affected by such event are Unregistered Securities or Coupon
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed by first class mail, postage
prepaid, to such Holders in the manner and to the extent provided in Section
7.4(c) and if published in an Authorized Newspaper or Newspapers in such city
or cities as may be provided elsewhere in this Indenture or specified as
contemplated by Section 3.1 on a Business Day at least twice (the first such
publication to be not earlier than the earliest date and not later than the
latest date prescribed for the giving of such notice). Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance on such
waiver. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders, and any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given. If, by reason of the
suspension of publication of any Authorized Newspapers or by reason of any
other cause, it shall be impracticable to publish any notice to Holders of
Unregistered Securities or of Coupons as provided above, then notification to
Holders of Unregistered Securities or of Coupons given with the approval of the
Trustee shall constitute sufficient notice to such Holders for every purpose
hereunder.
Section 14.4 Addresses for Notices. Any notice or demand that by any
provision of this Indenture is required or permitted to be given or served by
the Trustee for the Securities of any series or by the Holders of Securities of
any series or of any Coupons appertaining thereto on the Company or the
Guarantor may be sent by registered mail, hand delivered or sent by overnight
courier, addressed (until another address is filed by the Company with the
Trustee) to the Company or the Guarantor at Intel Corporation, Attention:
Treasurer, 2200 Mission College Boulevard, Santa Clara, CA 95052. Any notice,
direction, request or demand by any Holder of Securities of any series to or
upon the Trustee for such series or of any Coupons appertaining thereto shall
be deemed to have been sufficiently given or made, for all purposes, if given
or made at the Corporate Trust Office of the Trustee, and, in respect of
-78-
<PAGE> 85
Unregistered Securities or Coupons, at the corporate trust office of the
Trustee referred to in Section 6.2(1). Any notice or demand required or
permitted under this Indenture shall be in the English language, except that
any published notice may be in the official language of the country of
publication.
Section 14.5 Cross References. All references herein to "Articles,"
"Section" and other subdivisions are to the corresponding Articles or other
subdivisions of this Indenture; and the words "herein," "hereof," "hereby,"
"hereunder," "hereinbefore" and "hereinafter" and other words of similar
purport refer to this Indenture generally and not to any particular Article,
Section, or other subdivision hereof.
Section 14.6 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 14.7 Headings Not to Affect Construction. The headings of the
Articles, Sections and other subdivisions hereof are for convenience only and
shall not affect the construction hereof.
Section 14.8 Trust Indenture Act to Govern. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 14.9 Legal Holidays. In any case where the date of maturity
of interest on or principal of or premium, if any, on the Securities or Coupons
or the date fixed for redemption or repayment of any Security shall not be a
Business Day at any Place of Payment with respect to Securities of that series,
then (notwithstanding any other provisions of this Indenture or of the Security
or Coupons) payment of such interest on or principal of or premium, if any, on
the Securities and Coupons need not be made on such date in such Place of
Payment but may be made on the next succeeding Business Day in such Place of
Payment with the same force and effect as if made on the date of maturity or
the date fixed for redemption or repayment, as the case may be, and no interest
shall accrue for the period from and after such date of maturity or date fixed
for redemption or repayment.
Section 14.10 Governing Law. This Indenture and each Security for
all purposes shall be governed by and construed in accordance with the laws of
the State of California, unless with
-79-
<PAGE> 86
respect to Securities of a series it is provided that the laws of another
jurisdiction will govern.
ARTICLE 15
SUBORDINATION OF SECURITIES
Section 15.1 Subordination. Notwithstanding anything to the contrary
in this Indenture or the Securities of any series, or any Coupons appertaining
thereto, the Company, for itself, its successors and assigns, covenants and
agrees and each Holder of the Securities of any series by his acceptance
thereof likewise covenants and agrees that the payment of principal, premium,
if any, and interest in respect of the indebtedness issued pursuant to this
Indenture shall be junior and subordinate and subject in right of payment to
all Company Senior Indebtedness as provided in this Article 15.
As used in this Article 15, "Company Senior Indebtedness" shall mean
(a) all indebtedness of the Company for money borrowed (including
purchase-money obligations with an original maturity in excess of one year) or
evidenced by debentures, notes or other corporate debt securities or similar
instruments issued by the Company; (b) indebtedness or obligations of the
Company constituting a guarantee of indebtedness of or an obligation of others
of the type referred to in (a) above; or (c) any modification, extension,
renewal or refunding of any of the indebtedness or obligations referred to in
(a) or (b) above, unless, in the case of any particular indebtedness or
obligation, modification, extension, renewal or refunding, under the express
provisions of the instrument creating or evidencing the same, or pursuant to
which the same is outstanding, such indebtedness or other obligation or such
modification, extension, renewal or refunding thereof is not superior in right
of payment to the Securities.
Section 15.2 Acceleration of Securities. If any of the Securities of
any series are declared or become due and payable before their Stated Maturity
because of the occurrence of an Event of Default hereunder (under circumstances
when the provisions of Section 15.4 shall not be applicable), then all Company
Senior Indebtedness shall be paid in full before any payment or distribution of
any character, whether in cash, securities or other property (whether in
respect of principal, premium, if any, or interest) shall be made in respect of
the Securities of such series.
Section 15.3 Default on Company Senior Indebtedness. Unless and until
all Company Senior Indebtedness shall have been paid in full in accordance with
its terms, the Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, make or agree to make:
-80-
<PAGE> 87
(a) any payment or prepayment (in cash or property, by
set-off or otherwise), direct or indirect, of principal, premium, if
any, or interest in respect of any of the Securities (or any
indebtedness subordinated to the Securities), and no such payment
shall be due or payable or shall be accepted by any Holder of any such
Securities, or
(b) any redemption, purchase or other acquisition, direct
or indirect, of any Securities (or any indebtedness subordinated to
the Securities), and no Holder of any Securities shall be a party to
any such redemption, purchase or other acquisition, or
(c) any payment on account of a sinking fund for any of
the Securities (except sinking-fund payments made in Securities
acquired by the Company before the occurrence of an event of default
with respect to Company Senior Indebtedness), if an event of default
with respect to any Company Senior Indebtedness (as defined in any
agreement pursuant to which Company Senior Indebtedness shall have
been issued) shall have occurred and be continuing or if any such
action would constitute an event of default on the part of the Company
in respect of any Company Senior Indebtedness or any instrument or
agreement relating thereto and such event of default shall be
continuing.
As used in this Article 15 or Article 17, "Subsidiary" shall mean any
corporation (or any other person treated by the Company or the Guarantor, as
the case may be, for its accounting purposes as a corporation) of which at
least a majority of the outstanding stock having by the terms thereof ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned or
controlled by the Company or the Guarantor, as the case may be, or by any one
or more Subsidiaries, or by the Company or the Guarantor, as the case may be,
and one or more Subsidiaries.
Section 15.4 Insolvency, etc. In the event of (i) any insolvency or
bankruptcy proceeding, or any receivership, liquidation or other similar
proceeding in connection therewith, relative to the Company or its property, or
(ii) any proceeding for voluntary liquidation, dissolution or other winding-up
of the Company, whether or not involving insolvency or bankruptcy, or (iii) any
assignment for the benefit of creditors, or (iv) any distribution, division,
marshalling or application of any of the properties or assets of the Company or
the proceeds thereof, to creditors, voluntary or involuntary, and whether or
not involving legal proceedings, then in any such event:
-81-
<PAGE> 88
(a) all Company Senior Indebtedness shall first be paid
in full before any payment or distribution of any character, whether
in cash, securities or other property, shall be made by the Company in
respect of any of the Securities;
(b) all principal of and premium, if any, and interest on
the Securities shall (notwithstanding the terms of Section 15.3)
become due and payable, and any payment or distribution of any
character, whether in cash, securities or other property, which would
otherwise (but for the terms hereof) be payable or deliverable by the
Company in respect of any of the Securities (including any payment or
distribution in respect of any of the Securities by reason of any
other indebtedness of the Company being subordinated to the
Securities), shall be paid or delivered directly to the holders of
Company Senior Indebtedness at the time outstanding (or their
respective representatives), or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Company
Senior Indebtedness may have been issued, ratably according to the
respective aggregate amounts remaining unpaid thereon, until all
Company Senior Indebtedness shall have been paid in full (but subject
to the power of a court of competent jurisdiction to make other
equitable provision reflecting the rights of the Company Senior
Indebtedness and the holders thereof with respect to the Securities by
lawful plan of reorganization under applicable bankruptcy law), and
the Holders of the Securities at the time outstanding irrevocably
authorize, empower and direct all receivers, trustees, liquidators,
conservators and others having authority in the premises to effect all
such payments and deliveries;
(c) the Holders of the Securities at the time outstanding
irrevocably authorize and empower (without imposing any obligation on)
each holder of Company Senior Indebtedness at the time outstanding and
such holder's representatives to demand, sue for, collect and receive
such holder's ratable share of all such payments and distributions and
to receipt therefor, and to file and prove all claims therefor and
take all such other action (including the right to vote such Company
Senior Indebtedness holder's ratable share of the Securities) in the
name of the Holders of the Securities or otherwise, as such Company
Senior Indebtedness holder or such holder's representatives may
determine to be necessary or appropriate for the enforcement of this
Section 15.4; and
-82-
<PAGE> 89
(d) the Holders of the Securities shall execute and
deliver to each holder of Company Senior Indebtedness and such
holder's representatives all such further instruments confirming the
above authorization, and all such powers of attorney, proofs of claim,
assignments of claim and other instruments, and shall take all such
other action as may be requested by such holder or such holder's
representatives, in order to enable such holder to enforce all claims
upon or in respect of such holder's ratable share of the Securities.
Section 15.5 Payments and Distributions Received. If any payment or
distribution of any character (whether in cash, securities, or other property)
or any security shall be received by the Trustee or any Holder of any of the
Securities in contravention of any of the terms hereof and before all Company
Senior Indebtedness shall have been paid in full, such payment or distribution
or security shall be held in trust for the benefit of, and shall be paid over
or delivered and transferred to, the holders of the Company Senior Indebtedness
at the time outstanding (or their respective representatives), or to the
trustee or trustees under any indenture under which any instruments evidencing
any of such Company Senior Indebtedness may have been issued, for application
to the payment of all Company Senior Indebtedness remaining unpaid, ratably
according to the respective aggregate amounts remaining unpaid thereon, to the
extent necessary to pay all such Company Senior Indebtedness in full. In the
event of the failure of the Trustee (pursuant to Section 15.4) or any Holder of
any of the Securities to endorse or assign any such payment, distribution or
security, each holder of Company Senior Indebtedness and each such holder's
representative is hereby irrevocably authorized to endorse or assign the same.
Section 15.6 Excess Company Senior Indebtedness Payment, Subrogation,
etc. If cash, securities or other property otherwise payable or deliverable to
the holders of the Securities shall have been applied, pursuant to Section 15.4
or 15.5, to the payment of Company Senior Indebtedness in full, then in such
case, the Holders of the Securities (a) shall be entitled to receive from the
holders of the Company Senior Indebtedness at the time outstanding any payments
or distributions received by such holders of Company Senior Indebtedness in
excess of the amount sufficient to pay all Company Senior Indebtedness in full,
and (b) shall be subrogated to any rights of the holders of Company Senior
Indebtedness to receive all further payments or distributions applicable to the
Company Senior Indebtedness, until all principal of and premium, if any, and
interest on the Securities shall have been paid in full. No such payments or
distributions received by the Holders of the Securities, by reason of such
subrogation, of cash, securities or other property, which otherwise would be
paid or distributed to the holders of Company Senior Indebtedness,
-83-
<PAGE> 90
shall, as between the Company and its creditors (other than the holders of the
Company Senior Indebtedness), on the one hand, and the Holders of the
Securities, on the other hand, be deemed to be a payment by the Company to or
on account of the Securities.
Section 15.7 No Security. So long as any of the Company Senior
Indebtedness shall not have been paid in full, the Company shall not, and shall
not permit any of its Subsidiaries to, give and the Holders of the Securities
shall not demand, accept or receive any security, direct or indirect, for any
Securities.
Section 15.8 Obligations Not Impaired. Nothing contained in this
Article 15 or elsewhere in this Indenture or in the Securities is intended to
or shall impair, as between the Company and the Holder of any Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
holder thereof the principal of, premium, if any, and interest thereof as and
when the same shall become due and payable in accordance with the terms
thereof, or is intended to or shall affect the relative rights of the Holders
of the Securities and creditors of the Company other than the holders of the
Company Senior Indebtedness, or is intended to or shall prevent the Trustee or
the Holder of any Securities, upon the occurrence of an Event of Default, from
exercising all rights, powers and remedies otherwise provided herein or
permitted by applicable law, all subject to the rights, if any, of the holders
of Company Senior Indebtedness under this Article 15 to receive cash,
securities or other property otherwise payable or deliverable to the Holders of
the Securities. Upon any distribution of assets of the Company referred to in
this Article 15, the Trustee, subject to the provisions of Section 9.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee or to the Holders of the Securities, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Company Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 15.
Section 15.9 Subordination Not Affected, etc. The terms of this
Article 15, the subordination effected hereby and the rights of the present or
future holders of the Company Senior Indebtedness, shall not be affected by (a)
any amendment of or addition or supplement to any Company Senior Indebtedness
or any instrument or agreement relating thereto, (b) any exercise or
nonexercise of any right, power or remedy under or in respect of any Company
Senior Indebtedness or any instrument or agreement
-84-
<PAGE> 91
relating thereto, (c) any sale, exchange, release or other transaction
affecting all or any part of the property at any time pledged or mortgaged to
secure, or however securing, Company Senior Indebtedness, (d) any waiver,
consent, release, indulgence, extension, renewal, modification, delay,
noncompliance or other action, inaction or omission, in respect of any Company
Senior Indebtedness or this Indenture or any instrument or agreement relating
thereto, (e) any act or failure to act on the part of the Company, or (f) any
act or failure to act, in good faith, by any such holder, whether or not any
Holder of any Securities shall have had notice or knowledge of any of the
foregoing.
Section 15.10 Changes, Waivers, etc. Neither this Article 15 nor any
terms hereof may be changed or waived except with the prior written consent of
the holders of all of the Company Senior Indebtedness at the time outstanding.
Neither the Securities nor any term thereof may be changed, waived or cancelled
in any manner that would have any adverse effect upon the rights of the holders
of the Company Senior Indebtedness at the time outstanding.
Section 15.11 Payment in Full of Company Senior Indebtedness. For
all purposes of this Article 15, Company Senior Indebtedness shall not be
deemed to have been paid in full unless (a) the holders thereof (or their duly
authorized representatives) shall have received cash or readily marketable
securities, taken at their then market value, equal to the amount of Company
Senior Indebtedness at the time outstanding, or (b) other equitable provisions
have been effected by action of a court of competent jurisdiction or agreement
among the holders of Company Senior Indebtedness.
Section 15.12 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice. The Trustee shall not at any time be charged with knowledge
of the existence of any facts that would prohibit the making of any payment of
moneys to or by the Trustee, unless and until the Trustee shall have received
written notice thereof from the Company or from one or more holders of Company
Senior Indebtedness or from any trustee therefor; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Article 9,
shall be entitled to assume that no such facts exist.
Section 15.13 Application by Trustee of Moneys Deposited With It.
Anything in this Indenture to the contrary notwithstanding, any deposit of
moneys by the Company with the Trustee or any payment agent (whether or not in
trust) for the payment of the principal of or premium, if any, or interest on
any Securities shall be subject to the provisions of this Article 15 except
that, if prior to the date on which by the terms of this Indenture any such
moneys may become payable for any purpose (including the payment of either the
principal of or the interest or premium, if any, on any Securities) the Trustee
-85-
<PAGE> 92
shall not have received with respect to such moneys the notice provided for in
Section 15.12, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such moneys and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such date.
Section 15.14 Securityholders Authorize Trustee to Effectuate
Subordination of Securities. Each Holder of the Securities by his acceptance
thereof authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article 15 and appoints the Trustee his attorney-in-fact for
such purpose, including taking action on behalf of the Holders of the
Securities, when required, as specified in Section 15.4 and including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the immediate filing of
a claim for the unpaid balance of its or his Securities in the form required in
such proceedings and causing such claim to be approved. If the Trustee does
not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holder or holders of Company Senior Indebtedness are
hereby authorized to and have the right to file and are hereby authorized to
file an appropriate claim for and on behalf of the Holders of such Securities.
Section 15.15 Right of Trustee to Hold Company Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this Article 15
in respect of any Company Senior Indebtedness at any time held by it to the
same extent as any other holder of Company Senior Indebtedness, and nothing in
Article 9 or elsewhere in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
Section 15.16 Article 15 Not to Prevent Events of Default or Recourse
to Guarantee. The failure to make a payment on account of principal, interest
or sinking fund by reason of any provision in this Article 15 shall not be
construed as preventing the occurrence of an Event of Default under Section 9.1
or recourse against the Guarantor by the Holders of the Securities on the
Guarantee in accordance with Article 16 hereof.
-86-
<PAGE> 93
ARTICLE 16
THE GUARANTEE
Section 16.1 Guarantee. The Guarantor hereby unconditionally
guarantees to the Holders from time to time of the Securities (a) the full and
prompt payment of the principal of and any premium on any Security when and as
the same shall become due, whether at the maturity thereof, by acceleration,
redemption or otherwise and (b) the full and prompt payment of any interest on
any Security when and as the same shall become due and payable. Each payment
by the Guarantor with respect to any Security shall be paid in the currency or
currency unit specified in this Indenture or the related resolution of the
Board of Directors of the Company or supplemental indenture for payments on
such Security. Each and every default in the payment of the principal of or
interest or any premium on any Security shall give rise to a separate cause of
action hereunder, and separate suits may be brought hereunder as each cause of
action arises.
The obligations of the Guarantor hereunder shall be absolute and
unconditional and shall remain in full force and effect until the entire
principal of and interest and any premium on the Securities shall have been
paid or provided for in accordance with the provisions of this Indenture, and
such payment shall not be affected, modified or impaired upon the happening
from time to time of any event, including without limitation any of the
following, whether or not with notice to, or the consent of, the Guarantor:
(a) the waiver, surrender, compromise, settlement, release or
termination of any or all of the obligations, covenants or agreements of the
Company under this Indenture or the Securities;
(b) the failure to give notice to the Guarantor of the occurrence
of an Event of Default;
(c) the waiver, compromise or release of the payment, performance
or observance by the Company or the Guarantor of any or all of the obligations,
covenants or agreements of either of them contained in this Indenture;
(d) the extension of the time for payment of any principal of or
interest or any premium on any Security or for any other payment under this
Indenture or of the time for performance of any other obligations, covenants or
agreements under or arising out of this Indenture;
(e) the modification or amendment (whether material or otherwise)
of any obligation, covenant or agreement set forth in this Indenture or the
Securities;
-87-
<PAGE> 94
(f) the taking or the omission of any of the actions referred to
in this Indenture and any of the actions under the Securities;
(g) any failure, omission, delay or lack on the part of the
Trustee to enforce, assert or exercise any right, power or remedy conferred on
the Trustee in this Indenture, or any other act or acts on the part of the
Trustee or any of the Holders from time to time of the Securities or of any
interest coupons appertaining thereto;
(h) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all the assets, marshalling of assets
and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition with creditors
or readjustment of, or other similar proceedings affecting the Guarantor or the
Company or any of the assets of any of them, or any allegation or contest of
the validity of the Guarantee in any such proceeding;
(i) to the extent permitted by law, the release or discharge by
operation of law of the Guarantor from the performance or observance of any
obligation, covenant or agreement contained in this Indenture;
(j) to the extent permitted by law, the release or discharge by
operation of law of the Company from the performance or observance of any
obligation, covenant or agreement contained in this Indenture;
(k) the default or failure of the Guarantor or the Trustee fully
to perform any of its obligations set forth in this Indenture or the
Securities; or
(l) the invalidity of this Indenture or the Securities or any part
of any thereof.
The Guarantor shall be subrogated to all rights of the Holder of any
Securities of any series against the Company in respect of any amounts paid by
the Guarantor pursuant to the provisions hereof; provided, however, that the
Guarantor shall not be entitled to enforce, or to receive any payments arising
out of or based upon, such right of subrogation until the principal of and
interest and any premium on all Securities of that series shall have been paid
in full.
Section 16.2 Proceedings Against the Guarantor. In the event of a
default in the payment of principal of or any premium on any Security when and
as the same shall become due, whether at the Stated Maturity thereof, by
acceleration, call for redemption or otherwise, or in the event of a default in
any sinking fund payment, or in the event of a default in the payment of any
interest on any Security when and as the same
-88-
<PAGE> 95
shall become due, the Trustee shall have the right to proceed first and
directly against the Guarantor under this Indenture without first proceeding
against the Company or exhausting any other remedies which it may have and
without resorting to any other security held by the Trustee.
The Trustee shall have the right, power and authority to do all things
it deems necessary or advisable to enforce the provisions of this Indenture
relating to the Guarantee and protect the interests of the Holders of the
Securities or coupons appertaining thereto and, in the event of a default in
payment of the principal of or any premium on any Security when and as the same
shall become due, whether at the Stated Maturity thereof, by acceleration, call
for redemption or otherwise, or in the event of a default in the payment of any
interest on any Security when and as the same shall become due, the Trustee may
institute or appear in such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of its rights and the
rights of the Holders of Securities, whether for the specific enforcement of
any covenant or agreement in this Indenture relating to the Guarantee or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy. Without limiting the generality of the foregoing, in the event of a
default in payment of the principal of or interest or any premium on any
Security when due, the Trustee may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Guarantor and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Guarantor, wherever situated.
Section 16.3 Guarantee for Benefit of Holders of Securities. The
Guarantee contained in this Indenture is entered into by the Guarantor for the
benefit of the Holders from time to time of the Securities and of any Coupons
appertaining thereto. Such provisions shall not be deemed to create any right
in, or to be in whole or in part for the benefit of any Person other than, the
Trustee, the Guarantor, the Holders from time to time of the Securities and of
any coupons appertaining thereto, and their permitted successors and assigns.
ARTICLE 17
SUBORDINATION OF GUARANTEE
Section 17.1 Subordination. Notwithstanding anything to the contrary
in this Indenture or the Securities of any series, or any Coupons appertaining
thereto, the Guarantor, for itself, its successors and assigns, covenants and
agrees and each Holder of the Securities of any series by his acceptance
thereof likewise covenants and agrees that all payments in respect of
-89-
<PAGE> 96
the Guarantee shall be junior and subordinate and subject in right of payment
to all Guarantor Senior Indebtedness as provided in this Article 17.
As used in this Article 17, "Guarantor Senior Indebtedness" shall mean
(a) all indebtedness of the Guarantor for money borrowed (including
purchase-money obligations with an original maturity in excess of one year) or
evidenced by debentures, notes or other corporate debt securities or similar
instruments issued by the Guarantor; (b) indebtedness or obligations of the
Guarantor constituting a guarantee of indebtedness of or an obligation of
others of the type referred to in (a) above; or (c) any modification,
extension, renewal or refunding of any of the indebtedness or obligations
referred to in (a) or (b) above, unless, in the case of any particular
indebtedness or obligation, modification, extension, renewal or refunding,
under the express provisions of the instrument creating or evidencing the same,
or pursuant to which the same is outstanding, such indebtedness or other
obligation or such modification, extension, renewal or refunding thereof is not
superior in right of payment to the Guarantee.
Section 17.2 Default on Guarantor Senior Indebtedness. Unless and
until all Guarantor Senior Indebtedness shall have been paid in full in
accordance with its terms, the Guarantor will not, and will not permit any of
its Subsidiaries to, directly or indirectly, make or agree to make any payment
or prepayment (in cash or property, by set-off or otherwise), direct or
indirect, in respect of the Guarantee (or any indebtedness subordinated to the
Guarantee), and no such payment shall be due or payable or shall be accepted by
any Holder of Securities, if an event of default with respect to any Guarantor
Senior Indebtedness (as defined in any agreement pursuant to which Guarantor
Senior Indebtedness shall have been issued) shall have occurred and be
continuing or if such action would constitute an event of default on the part
of the Guarantor in respect of any Guarantor Senior Indebtedness or any
instrument or agreement relating thereto and such event of default shall be
continuing.
Section 17.3 Insolvency, etc. In the event of (i) any insolvency or
bankruptcy proceeding, or any receivership, liquidation or other similar
proceeding in connection therewith, relative to the Guarantor or its property,
or (ii) any proceeding for voluntary liquidation, dissolution or other
winding-up of the Guarantor, whether or not involving insolvency or bankruptcy,
or (iii) any assignment for the benefit of creditors, or (iv) any distribution,
division, marshalling or application of any of the properties or assets of the
Guarantor or the proceeds thereof, to creditors, voluntary or involuntary, and
whether or not involving legal proceedings, then in any such event:
-90-
<PAGE> 97
(a) all Guarantor Senior Indebtedness shall first be paid
in full before any payment or distribution of any character, whether
in cash, securities or other property, shall be made by the Guarantor
in respect of the Guarantee;
(b) any payment or distribution of any character, whether
in cash, securities or other property, which would otherwise (but for
the terms hereof) be payable or deliverable by the Guarantor in
respect of the Guarantee (including any payment or distribution in
respect of the Guarantee by reason of any other indebtedness of the
Guarantor being subordinated to the Guarantee), shall be paid or
delivered directly to the holders of Guarantor Senior Indebtedness at
the time outstanding (or their respective representatives), or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Guarantor Senior Indebtedness may have been
issued, ratably according to the respective aggregate amounts
remaining unpaid thereon, until all Guarantor Senior Indebtedness
shall have been paid in full (but subject to the power of a court of
competent jurisdiction to make other equitable provision reflecting
the rights of the Guarantor Senior Indebtedness and the holders
thereof with respect to the Securities by lawful plan of
reorganization under applicable bankruptcy law), and the Holders of
the Securities at the time outstanding irrevocably authorize, empower
and direct all receivers, trustees, liquidators, conservators and
others having authority in the premises to effect all such payments
and deliveries;
(c) the Holders of the Securities at the time outstanding
irrevocably authorize and empower (without imposing any obligation on)
each holder of Guarantor Senior Indebtedness at the time outstanding
and such holder's representatives to demand, sue for, collect and
receive such holder's ratable share of all such payments and
distributions and to receipt therefor, and to file and prove all
claims therefor and take all such other action (including the right to
vote such Guarantor Senior Indebtedness holder's ratable share of the
Securities) in the name of the Holders of the Securities or otherwise,
as such Guarantor Senior Indebtedness holder or such holder's
representatives may determine to be necessary or appropriate for the
enforcement of this Section 17.3; and
(d) the Holders of the Securities shall execute and
deliver to each holder of Guarantor Senior Indebtedness and such
holder's representatives all such further instruments confirming the
above
-91-
<PAGE> 98
authorization, and all such powers of attorney, proofs of claim,
assignments of claim and other instruments, and shall take all such
other action as may be requested by such holder or such holder's
representatives, in order to enable such holder to enforce all claims
upon or in respect of such holder's ratable share of the Securities.
Section 17.4 Payments and Distributions Received. If any payment or
distribution of any character (whether in cash, securities, or other property)
or any security shall be received by the Trustee or any holder of any of the
Securities in contravention of any of the terms hereof and before all Guarantor
Senior Indebtedness shall have been paid in full, such payment or distribution
or security shall be held in trust for the benefit of, and shall be paid over
or delivered and transferred to, the holders of the Guarantor Senior
Indebtedness at the time outstanding (or their respective representatives), or
to the trustee or trustees under any indenture under which any instruments
evidencing any of such Guarantor Senior Indebtedness may have been issued, for
application to the payment of all Guarantor Senior Indebtedness remaining
unpaid, ratably according to the respective aggregate amounts remaining unpaid
thereon, to the extent necessary to pay all such Guarantor Senior Indebtedness
in full. In the event of the failure of the Trustee (pursuant to Section 17.3)
or any holder of any of the Securities to endorse or assign any such payment,
distribution or security, each holder of Guarantor Senior Indebtedness and each
such holder's representative is hereby irrevocably authorized to endorse or
assign the same.
Section 17.5 Excess Guarantor Senior Indebtedness Payment,
Subrogation, etc. If cash, securities or other property otherwise payable or
deliverable to the holders of the Securities shall have been applied, pursuant
to Section 17.3 or 17.3, to the payment of Guarantor Senior Indebtedness in
full, then in such case, the Holders of the Securities (a) shall be entitled to
receive from the holders of the Guarantor Senior Indebtedness at the time
outstanding any payments or distributions received by such holders of Guarantor
Senior Indebtedness in excess of the amount sufficient to pay all Guarantor
Senior Indebtedness in full, and (b) shall be subrogated to any rights of the
holders of Guarantor Senior Indebtedness to receive all further payments or
distributions applicable to the Guarantor Senior Indebtedness, until all
amounts due and payable in respect of the Guarantee shall have been paid in
full. No such payments or distributions received by the Holders of the
Securities, by reason of such subrogation, of cash, securities or other
property, which otherwise would be paid or distributed to the holders of
Guarantor Senior Indebtedness, shall, as between the Guarantor and its
creditors (other than the holders of the Guarantor Senior Indebtedness), on the
one hand, and the Holders of the Securities, on the other
-92-
<PAGE> 99
hand, be deemed to be a payment by the Guarantor to or on account of the
Guarantee.
Section 17.6 No Security. So long as any of the Guarantor Senior
Indebtedness shall not have been paid in full, the Guarantor shall not, and
shall not permit any of its Subsidiaries to, give and the Holders of the
Securities shall not demand, accept or receive any security, direct or
indirect, for the Guarantor's obligation in respect of the Guarantee.
Section 17.7 Obligations Not Impaired. Nothing contained in this
Article 17 or elsewhere in this Indenture or in the Securities is intended to
or shall impair, as between the Guarantor and the Holder of any Securities, the
obligation of the Guarantor in respect of the Guarantee, which is absolute and
unconditional, in accordance with Article 16, or is intended to or shall affect
the relative rights of the Holders of the Securities and creditors of the
Guarantor other than the holders of the Guarantor Senior Indebtedness, or is
intended to or shall prevent the Trustee or the Holder of any Securities from
exercising all rights, powers and remedies otherwise provided herein or
permitted by applicable law, all subject to the rights, if any, of the holders
of Guarantor Senior Indebtedness under this Article 17 to receive cash,
securities or other property otherwise payable or deliverable to the Holders of
the Securities in respect of the Guarantee. Upon any distribution of assets of
the Guarantor referred to in this Article 17, the Trustee, subject to the
provisions of Section 9.1, and the Holders of the Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization proceedings
are pending, or a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Guarantor Senior Indebtedness and
other indebtedness of the Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 17.
Section 17.8 Subordination Not Affected, etc. The terms of this
Article 17, the subordination effected hereby and the rights of the present or
future holders of the Guarantor Senior Indebtedness, shall not be affected by
(a) any amendment of or addition or supplement to any Guarantor Senior
Indebtedness or any instrument or agreement relating thereto, (b) any exercise
or nonexercise of any right, power or remedy under or in respect of any
Guarantor Senior Indebtedness or any instrument or agreement relating thereto,
(c) any sale, exchange, release or other transaction affecting all or any part
of the property at any time pledged or mortgaged to secure, or however
securing, Guarantor Senior Indebtedness, (d) any waiver, consent, release,
indulgence, extension, renewal, modification, delay,
-93-
<PAGE> 100
noncompliance or other action, inaction or omission, in respect of any
Guarantor Senior Indebtedness or this Indenture or any instrument or agreement
relating thereto, (e) any act or failure to act on the part of the Guarantor,
or (f) any act or failure to act, in good faith, by any such holder, whether or
not any Holder of any Securities shall have had notice or knowledge of any of
the foregoing.
Section 17.9 Changes, Waivers, etc. Neither this Article 17 nor any
terms hereof may be changed or waived except with the prior written consent of
the holders of all of the Guarantor Senior Indebtedness at the time
outstanding. Neither the Securities nor any term thereof may be changed,
waived or cancelled in any manner that would have any adverse effect upon the
rights of the holders of the Guarantor Senior Indebtedness at the time
outstanding.
Section 17.10 Payment in Full of Guarantor Senior Indebtedness. For
all purposes of this Article 17, Guarantor Senior Indebtedness shall not be
deemed to have been paid in full unless (a) the holders thereof (or their duly
authorized representatives) shall have received cash or readily marketable
securities, taken at their then market value, equal to the amount of Guarantor
Senior Indebtedness at the time outstanding, or (b) other equitable provisions
have been effected by action of a court of competent jurisdiction or agreement
among the holders of Guarantor Senior Indebtedness.
Section 17.11 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice. The Trustee shall not at any time be charged with knowledge
of the existence of any facts that would prohibit the making of any payment of
moneys to or by the Trustee, unless and until the Trustee shall have received
written notice thereof from the Guarantor or from one or more holders of
Guarantor Senior Indebtedness or from any trustee therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Article 9, shall be entitled to assume that no such facts exist.
Section 17.12 Application by Trustee of Moneys Deposited with It.
Anything in this Indenture to the contrary notwithstanding, any deposit of
moneys by the Guarantor with the Trustee or any payment agent (whether or not
in trust) for payment in respect of the Guarantee shall be subject to the
provisions of this Article 17 except that, if prior to the date on which by the
terms of this Indenture any such moneys may become payable for any purpose the
Trustee shall not have received with respect to such moneys the notice provided
for in Section 17.11, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such moneys and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary which may be received
by it on or after such date.
-94-
<PAGE> 101
Section 17.13 Securityholders Authorize Trustee to Effectuate
Subordination of Guarantee. Each Holder of the Securities by his acceptance
thereof authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article 17 and appoints the Trustee his attorney-in-fact for
such purpose, including taking action on behalf of the Holders of the
Securities, when required, as specified in Section 17.4 and including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Guarantor (whether in bankruptcy, insolvency or receivership proceedings or
upon an assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Guarantor, the immediate filing
of a claim for amounts due and payable in respect of the Guarantee in the form
required in such proceedings and causing such claim to be approved. If the
Trustee does not file a proper claim or proof of debt in the form required in
such proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holder or holders of Guarantor Senior Indebtedness
are hereby authorized to and have the right to file and are hereby authorized
to file an appropriate claim for and on behalf of the Holders of such
Securities.
Section 17.14 Right of Trustee to Hold Guarantor Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this Article 17
in respect of any Guarantor Senior Indebtedness at any time held by it to the
same extent as any other holder of Guarantor Senior Indebtedness, and nothing
in Article 9 or elsewhere in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
-95-
<PAGE> 1
EXHIBIT 5.1
October 20, 1994
Intel Corporation
Intel Overseas Corporation
2200 Mission College Boulevard
Santa Clara, California 95052-8119
Ladies and Gentlemen:
This opinion is being delivered in connection with the proposed issuance and
sale by Intel Corporation ("Intel") of (a) shares of its common stock, $0.001
par value ("Common Stock"), (b) shares of its preferred stock, $.001 par value
("Preferred Stock"), in one or more series, (c) depository shares evidenced by
depository receipts, each representing fractional interests in Preferred Stock
("Depositary Shares"), (d) debt securities of Intel ("Intel Debt Securities"),
(e) options, warrants and other rights to purchase shares of Common Stock
("Common Stock Warrants") or shares of Preferred Stock ("Preferred Stock
Warrants"), (f) options, warrants and other rights to purchase shares of
capital stock or debt of another corporation or entity ("Third Party
Warrants"), (g) options, warrants and other rights to purchase Debt Securities
("Debt Warrants"), (h) options, warrants and other rights issued by Intel
entitling the holders thereof to receive, upon exercise, the cash value in U.S.
dollars of the right to purchase or sell an amount of non-U.S. currency or
currencies for a specified amount of U.S. dollars, such value to be based on
the exchange rate prevailing at the time of payment of the U.S. dollar either
as compared to a specified non-U.S. currency or currency unit or as determined
by reference to an index of specified currencies or currency units ("Currency
Warrants"), (i) options, warrants and other rights issued by Intel entitling
the holders thereof to receive, upon exercise, an amount in cash determined by
reference to decreases, increases or other measurements in the level of a
specified stock index which may be based on U.S. or foreign stocks or a
combination thereof ("Stock Index Warrants"), (j) options, warrants or other
rights relating to other items or indices ("Other Warrants") and (k) debt
securities of Intel Overseas Corporation ("Intel Overseas") ("Overseas Debt
Securities"), unconditionally guaranteed by Intel ("Guarantees")(the Common
Stock, Preferred
<PAGE> 2
Intel Corporation
Intel Overseas Corporation
October 20, 1994
Page 2
Stock, Depositary Shares, Intel Debt Securities, Common Stock Warrants,
Preferred Stock Warrants, Third Party Warrants, Debt Warrants, Currency
Warrants, Stock Index Warrants, Other Warrants, Guarantees and Overseas Debt
Securities, collectively, the "Securities"), having an aggregate initial public
offering price of up to U.S. $1,000,000 or the equivalent thereof. The
Securities are to be issued pursuant to a Registration Statement on Form S-3
("Registration Statement") filed by Intel and Intel Overseas with the
Securities and Exchange Commission on October 20, 1994 under the Securities Act
of 1933.
We are familiar with proceedings to date by Intel and Intel Overseas with
respect to the issuance and sale of the Securities and have examined such
records, documents and matters of law as we have deemed necessary for purposes
of this opinion.
Based upon the foregoing, we are of the opinion that:
1. Intel is a corporation duly organized and validly existing under the laws
of the State of Delaware.
2. Intel Overseas is a corporation duly organized and validly existing under
the laws of the State of California.
3. The Common Stock, when issued, sold and delivered in the manner and for
the consideration stated in the Registration Statement, and any prospectus
supplement relating thereto, will be duly and validly issued, fully paid and
nonassessable.
4. When (a) the terms of any particular series of Preferred Stock have been
established in accordance with the resolutions of Intel's Board of Directors
authorizing the issuance and sale of Preferred Stock, (b) a statement of
designation conforming to the Delaware General Corporation Law regarding the
Preferred Stock has been filed with the Secretary of State of the State of
Delaware and (c) the Preferred Stock has been issued, sold and delivered in
the manner and for the consideration stated in the Registration Statement,
and any prospectus supplement relating thereto, and in accordance with the
terms of the particular series as established by Intel's Board of Directors,
the Preferred Stock will be duly and validly issued, fully paid and
nonassessable.
5. When (a) the terms of any particular series of Preferred Stock have been
established in accordance with the resolutions of Intel's Board of Directors
authorizing the issuance and sale of Preferred Stock, (b) a statement of
designation conforming to the Delaware General Corporation Law regarding the
Preferred Stock has been filed with the Secretary
<PAGE> 3
Intel Corporation
Intel Overseas Corporation
October 20, 1994
Page 3
of State of the State of Delaware, (c) the Preferred Stock has been deposited
with a bank or trust company (which meets the requirements set forth in the
Registration Statement) under one or more deposit agreements, substantially in
the form of the form of Deposit Agreement filed as Exhibit 4.8 to Intel and
Intel Overseas Registration Statement on Form S-3 (No. 33-58964) filed on March
2, 1993 (the "1993 Registration Statement"), which have been duly authorized
and validly executed and (d) Depository Shares, evidenced by depository
receipts, are issued, sold and delivered in the manner and for the
consideration stated in the Registration Statement, and any prospectus
supplement relating thereto, and in accordance with the appropriate depository
agreements, the Depository Shares will be duly and validly issued, fully paid
and nonassessable.
6. When (a) one or more indentures (incorporating the form of Intel
Corporation Standard Indenture Provisions, filed as Exhibit 4.2 to the
Registration Statement) under which the Intel Debt Securities will be issued
have been duly executed and delivered, (b) the terms of the Intel Debt
Securities have been established in accordance with the appropriate indenture
and the resolutions of Intel's Board of Directors authorizing the creation,
issuance and sale of the Intel Debt Securities, (c) the Intel Debt Securities
have been executed and authenticated in accordance with the terms of the
appropriate indenture and (d) the Intel Debt Securities have been issued, sold
and delivered in the manner and for the consideration stated in the
Registration Statement, any prospectus supplement relating thereto, and the
appropriate indenture, the Intel Debt Securities will be legal, valid and
binding obligations of Intel, enforceable against Intel in accordance with
their terms, except that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting generally the
enforcement of creditors' rights and by equitable principles of general
application (whether applied at law or in equity).
7. When (a) one or more agreements (incorporating the form of Intel
Corporation Standard Stock Warrant Provisions, filed as Exhibit 4.6 to the 1993
Registration Statement) under which the Common Stock Warrants and/or Preferred
Stock Warrants (collectively the "Stock Warrants") will be issued have been
duly executed and delivered by Intel and a warrant agent, (b) the terms of the
Stock Warrants have been established in accordance with the appropriate
agreement and the resolutions of Intel's Board of Directors authorizing the
issuance and sale of the Stock Warrants, (c) the Stock Warrant certificates
have been executed and authenticated in accordance with the terms of the
appropriate agreement and (d) the Stock Warrants have been
<PAGE> 4
Intel Corporation
Intel Overseas Corporation
October 20, 1994
Page 4
issued, sold and delivered in the manner and for the consideration stated in
the Registration Statement, any prospectus supplement relating thereto and the
appropriate agreement, the Stock Warrants will be legal, valid and binding
obligations of Intel, enforceable against Intel in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting generally the enforcement of creditors' rights and by
equitable principles of general application (whether applied at law or in
equity).
8. When (a) one or more agreements (incorporating the form of Intel
Corporation Standard Stock Warrant Provisions, filed as Exhibit 4.6 to the 1993
Registration Statement) or other provisions set forth in the Third Party
Warrant Agreement which will be filed as an exhibit to or incorporated by
reference in the Registration Statement under which the Third Party Warrants
will be issued have been duly executed and delivered by Intel and a warrant
agent, (b) the terms of the Third Party Warrants have been established in
accordance with the appropriate Third Party Warrant Agreement and the
resolutions of Intel's Board of Directors authorizing the issuance and sale of
the Third Party Warrants, (c) the Third Party Warrant certificates have been
executed and authenticated in accordance with the terms of the appropriate
agreement and (d) the Third Party Warrants have been issued, sold and delivered
in the manner and for the consideration stated in the Registration Statement,
any prospectus supplement relating thereto and the appropriate agreement, the
Third Party Warrants will be legal, valid and binding obligations of Intel,
enforceable against Intel in accordance with their terms, except as may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting generally the enforcement of creditors' rights and by equitable
principles of general application (whether applied at law or in equity).
9. When (a) one or more agreements (incorporating the form of Intel
Corporation Form of Currency Warrant Agreement, including warrant certificates,
filed as an exhibit to the Intel Corporation Registration Statement on Form S-3
(filed in February 1988) under which the Currency Warrants will be issued have
been duly executed and delivered by Intel and a warrant agent, (b) the terms of
the Currency Warrants have been established in accordance with the appropriate
agreement and the resolutions of Intel's Board of Directors authorizing the
issuance and sale of the Currency Warrants, (c) the Currency Warrant
certificates have been executed and authenticated in accordance with the terms
of the appropriate agreement and (d) the Currency Warrants have been issued,
sold and delivered in the manner and for the consideration stated in the
<PAGE> 5
Intel Corporation
Intel Overseas Corporation
October 20, 1994
Page 5
Registration Statement, any prospectus supplement relating thereto and the
appropriate agreement, the Currency Warrants will be legal, valid and binding
obligations of Intel, enforceable against Intel in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting generally the enforcement of creditors' rights and by
equitable principles of general application (whether applied at law or in
equity).
10. When (a) one or more agreements (incorporating the form of Intel
Corporation Stock Index Warrant Agreement, including form of warrant, filed as
Exhibit 4.1 to the Intel's Registration Statement on Form S-3 (File No.
33-20117) filed on November 4, 1992) under which the Stock Index Warrants will
be issued have been duly executed and delivered by Intel and a warrant agent,
(b) the terms of the Stock Index Warrants have been established in accordance
with the appropriate agreement and the resolutions of Intel's Board of
Directors authorizing the issuance and sale of the Stock Index Warrants, (c)
the Stock Index Warrant certificates have been executed and authenticated in
accordance with the terms of the appropriate agreement and (d) the Stock Index
Warrants have been issued, sold and delivered in the manner and for the
consideration stated in the Registration Statement, any prospectus supplement
relating thereto and the appropriate agreement, the Stock Index Warrants will
be legal, valid and binding obligations of Intel, enforceable against Intel in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting generally the
enforcement of creditors' rights and by equitable principles of general
application (whether applied at law or in equity).
11. When (a) one or more agreements (incorporating the form of Other Warrant
Agreement, including form of warrant, which will be filed as an exhibit to or
incorporated by reference in the Registration Statement) under which the Other
Warrants will be issued have been duly executed and delivered by Intel and a
warrant agent, (b) the terms of the Other Warrants have been established in
accordance with the appropriate agreement and the resolutions of Intel's Board
of Directors authorizing the issuance and sale of the Other Warrants, (c) the
Other Warrant certificates have been executed and authenticated in accordance
with the terms of the appropriate agreement and (d) the Other Warrants have
been issued, sold and delivered in the manner and for the consideration stated
in the Registration Statement, any prospectus supplement relating thereto and
the appropriate agreement, the Other Warrants will be legal, valid and binding
obligations of Intel, enforceable against Intel in accordance with their terms,
except as may be limited by
<PAGE> 6
Intel Corporation
Intel Overseas Corporation
October 20, 1994
Page 6
bankruptcy, insolvency, reorganization or other similar laws affecting
generally the enforcement of creditors' rights and by equitable principles of
general application (whether applied at law or in equity).
12. When (a) one or more agreements (incorporating the form of Intel
Corporation Standard Debt Securities Warrant Provisions, filed as Exhibit 4.7
to the 1993 Registration Statement) under which the Debt Warrants will be
issued have been duly executed and delivered by Intel and a warrant agent, (b)
the terms of the Debt Warrants have been established in accordance with the
appropriate agreement and the resolutions of Intel's Board of Directors
authorizing the issuance and sale of the Debt Warrants, (c) the Debt Warrant
certificates have been executed and authenticated in accordance with the terms
of the appropriate agreement and (d) the Debt Warrants have been issued, sold
and delivered in the manner and for the consideration stated in the
Registration Statement, any prospectus supplement relating thereto and the
appropriate agreement, the Debt Warrants will be legal, valid and binding
obligations of Intel, enforceable against Intel in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting generally the enforcement of creditors' rights and by
equitable principles of general application (whether applied at law or in
equity).
13. When (a) one or more indentures (incorporating the form of Intel
Overseas Corporation Standard Indenture Provisions, filed as Exhibit 4.4 to
the Registration Statement) under which the Overseas Debt Securities will be
issued have been duly executed and delivered, (b) the terms of the Overseas
Debt Securities have been established in accordance with the appropriate
indenture and the resolutions of the Intel Overseas' Board of Directors
authorizing the creation, issuance and sale of the Overseas Debt Securities and
Intel's Board of Directors authorizing the Guarantee of the Overseas Debt
Securities as provided in the appropriate indenture, (c) the Overseas Debt
Securities have been executed and authenticated in accordance with the terms of
the appropriate indenture and (d) the Overseas Debt Securities have been
issued, sold and delivered in the manner and for the consideration stated in
the Registration Statement, any prospectus supplement relating thereto, and the
appropriate indenture, the Overseas Debt Securities and the Guarantee will be
legal, valid and binding obligations of Intel Overseas and Intel, respectively,
enforceable against Intel Overseas and Intel in accordance with their terms,
except that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting generally the
<PAGE> 7
Intel Corporation
Interl Overseas Corporation
October 20, 1994
Page 7
enforcement of creditors' rights and by equitable principles of general
application (whether applied at law or in equity).
In connection with our opinions expressed above, we have assumed that, at or
prior to the time of the delivery of any such Security, the Registration
Statement has been declared effective, that the authorization of the Securities
will be applicable to such Security, will not have been modified or rescinded
and there will not have occurred any change in law affecting the validity or
enforceability of such Security. We have also assumed that none of the terms
of any Security to be established subsequent to the date hereof nor the
issuance and delivery of such Security, nor the compliance by Intel or Intel
Overseas with the terms of such Security, will violate any applicable law or
will result in a violation of any provision of any instrument or agreement then
binding upon Intel or Intel Overseas, or any restriction imposed by any court
or governmental body having jurisdiction over Intel or Intel Overseas.
We are members of the Bar of the State of California and the foregoing
opinion is limited to the laws of the State of California, the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the filing of the Registration Statement
referred to above. We also consent to the use of our name in the related
prospectus and prospectus supplement under the heading "Legal Matters."
08009
PILLSBURY MADISON & SUTRO
<PAGE> 1
EXHIBIT 24.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related Prospectus of Intel
Corporation pertaining to Common Stock, Preferred Stock, Depositary Shares,
Debt Securities, Warrants to Purchase Common Stock, Warrants to Purchase
Preferred Stock, Third Party Warrants, Warrants to Purchase Debt Securities,
Foreign Currency Exchange Warrants, Stock Index Warrants, Other Warrants and
Guarantees of Debt Securities of Intel Overseas Corporation, and Intel Overseas
Corporation pertaining to Debt Securities and to the incorporation by reference
therein of our report dated January 17, 1994 with respect to the consolidated
financial statements of Intel Corporation incorporated by reference in its
Annual Report (Form 10-K) for the year ended December 25, 1993 and the related
financial statement schedules included therein, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
San Jose, California
October 17, 1994
