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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR QUARTERLY PERIOD ENDED FEBRUARY 28, 1997
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ___________ TO ___________ .
COMMISSION FILE NUMBER: 0-14376
ORACLE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-2871189
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
500 Oracle Parkway
Redwood City, California 94065
(Address of principal executive offices, including zip code)
(415) 506-7000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. YES X NO
--- ---
Number of shares of registrant's common stock outstanding as of February 28,
1997: 653,409,529
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ORACLE CORPORATION
TABLE OF CONTENTS
<TABLE>
<C> <S> <C>
PART I. FINANCIAL INFORMATION PAGE
----
Item 1. Condensed Consolidated Financial Statements
Condensed Consolidated Balance Sheets at February 28, 1997 and
May 31, 1996................................................... 3
Condensed Consolidated Statements of Operations for the three
months and nine months ended February 28, 1997 and February 29,
1996........................................................... 4
Condensed Consolidated Statements of Cash Flows for the nine
months ended
February 28, 1997 and February 29, 1996........................ 5
Notes to Condensed Consolidated Financial Statements........... 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.......................................... 7
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.............................................. 14
Item 6. Exhibits and Reports on Form 8-K............................... 15
Signatures..................................................... 16
</TABLE>
2
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PART I. FINANCIAL INFORMATION
ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
ORACLE CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FEBRUARY 28, MAY 31,
1997 1996
------------ ----------
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents............................. $ 736,166 $ 715,742
Short-term cash investments........................... 306,902 125,166
Trade receivables, net of allowance for doubtful
accounts of $112,582 and $105,711, respectively...... 1,102,175 1,084,858
Prepaid and refundable income taxes................... 219,252 171,560
Other current assets.................................. 210,843 187,139
---------- ----------
Total Current Assets............................... 2,575,338 2,284,465
---------- ----------
LONG-TERM CASH INVESTMENTS............................. 30,363 41,963
PROPERTY, net.......................................... 775,796 685,754
COMPUTER SOFTWARE DEVELOPMENT COSTS, net............... 98,892 99,072
OTHER ASSETS........................................... 260,025 245,989
---------- ----------
Total Assets....................................... $3,740,414 $3,357,243
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Notes payable to banks................................ $ 9,470 $ 4,377
Current maturities of long-term debt.................. 880 1,246
Accounts payable...................................... 147,752 169,895
Income taxes.......................................... 38,972 181,999
Accrued compensation and related benefits............. 225,580 295,048
Customer advances and unearned revenues............... 475,568 434,435
Value added tax and sales tax payable................. 60,618 99,409
Other accrued liabilities............................. 380,822 268,555
---------- ----------
Total Current Liabilities.......................... 1,339,662 1,454,964
---------- ----------
LONG-TERM DEBT......................................... 300,950 897
OTHER LONG-TERM LIABILITIES............................ 24,028 21,726
DEFERRED INCOME TAXES.................................. 7,877 9,207
STOCKHOLDERS' EQUITY................................... 2,067,897 1,870,449
---------- ----------
Total Liabilities and Stockholders' Equity......... $3,740,414 $3,357,243
========== ==========
</TABLE>
See notes to condensed consolidated financial statements.
3
<PAGE>
ORACLE CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
FEBRUARY FEBRUARY
--------------------- ---------------------
1997 1996 1997 1996
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
REVENUES
Licenses and other................ $ 681,108 $ 528,351 $1,767,093 $1,397,019
Services.......................... 691,504 491,888 1,969,212 1,362,207
---------- ---------- ---------- ----------
Total Revenues................. 1,372,612 1,020,239 3,736,305 2,759,226
---------- ---------- ---------- ----------
OPERATING EXPENSES
Sales and marketing............... 460,361 365,282 1,274,899 1,000,955
Cost of services.................. 401,441 286,843 1,115,031 773,774
Research and development.......... 138,527 92,805 391,036 270,518
General and administrative........ 75,356 55,367 215,349 164,303
Acquired in-process research and
development...................... 36,800 -- 36,800 50,931
---------- ---------- ---------- ----------
Total Operating Expenses....... 1,112,485 800,297 3,033,115 2,260,481
---------- ---------- ---------- ----------
OPERATING INCOME................... 260,127 219,942 703,190 498,745
Other income (expense), net....... 4,330 1,709 17,935 11,791
---------- ---------- ---------- ----------
INCOME BEFORE PROVISION FOR INCOME
TAXES............................. 264,457 221,651 721,125 510,536
Provision for income taxes........ 95,204 75,361 259,605 173,582
---------- ---------- ---------- ----------
NET INCOME......................... $ 169,253 $ 146,290 $ 461,520 $ 336,954
========== ========== ========== ==========
EARNINGS PER SHARE................. $ 0.25 $ 0.22 $ 0.68 $ 0.50
========== ========== ========== ==========
COMMON AND COMMON EQUIVALENT SHARES
OUTSTANDING....................... 673,186 670,479 674,315 670,322
========== ========== ========== ==========
</TABLE>
See notes to condensed consolidated financial statements.
4
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ORACLE CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
FEBRUARY
--------------------
1997 1996
--------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income.............................................. $ 461,520 $ 336,954
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization.......................... 192,427 159,715
Write-off of acquired in-process research and
development........................................... 36,800 50,931
Provision for doubtful accounts........................ 49,371 41,844
Change in assets and liabilities net of effects from
purchase of Datalogix International, Inc.:
Increase in trade receivables......................... (86,999) (65,740)
Increase in prepaid and refundable income taxes....... (46,677) (7,535)
Increase in other current assets...................... (29,050) (20,988)
Increase (decrease) in accounts payable............... (21,799) 30,949
Decrease in income taxes.............................. (112,704) (20,777)
Increase in customer advances and unearned revenues... 45,143 38,907
Increase (decrease) in other accrued liabilities...... 11,148 (3,385)
Increase in other long-term liabilities............... 2,089 1,441
Increase (decrease) in deferred income taxes.......... 1,887 (17,916)
--------- ---------
Net cash provided by operating activities............... 503,156 524,400
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES
Increase in cash investments........................... (170,136) (869)
Capital expenditures, net.............................. (240,398) (220,022)
Capitalization of computer software development costs.. (22,424) (36,478)
Increase in other assets, net of cash acquired from
purchase of Datalogix International, Inc. ............ (68,824) (113,777)
--------- ---------
Net cash used for investing activities.................. (501,782) (371,146)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES
Net borrowings (payments) on debt obligations.......... 305,806 (420)
Proceeds from common stock issued...................... 76,739 52,454
Repurchase of common stock............................. (347,255) (82,920)
Proceeds from sales of call options.................... -- 17,175
--------- ---------
Net cash provided by (used for) financing activities.... 35,290 (13,711)
--------- ---------
EFFECT OF EXCHANGE RATE CHANGES ON CASH.................. (16,240) (7,034)
--------- ---------
Net increase in cash and cash equivalents............... 20,424 132,509
CASH AND CASH EQUIVALENTS
Beginning of period..................................... 715,742 480,158
--------- ---------
End of period........................................... $ 736,166 $ 612,667
========= =========
</TABLE>
See notes to condensed consolidated financial statements.
5
<PAGE>
ORACLE CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The condensed consolidated financial statements included herein have been
prepared by the Company, without audit, pursuant to the rules and regulations
of the Securities and Exchange Commission. Certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations. However, the Company believes that the
disclosures are adequate to make the information presented not misleading.
These condensed consolidated financial statements should be read in
conjunction with the financial statements and the notes thereto included in
the Company's Annual Report on Form 10-K for the year ended May 31, 1996.
The unaudited condensed consolidated financial statements included herein
reflect all adjustments (which include only normal, recurring adjustments)
which are, in the opinion of management, necessary to state fairly the results
for the nine month period ended February 28, 1997. The results for the nine
month period ended February 28, 1997 are not necessarily indicative of the
results expected for the full fiscal year.
2. EARNINGS PER SHARE
Earnings per share was computed based on the weighted average number of common
and common equivalent shares outstanding during the period. Common equivalent
shares are calculated using the treasury stock method and represent
incremental shares issuable upon the exercise of outstanding stock options.
3. ACQUISITIONS
As of December 31, 1996, the Company had a minority investment in Datalogix
International, Inc. of approximately 13.4%. Effective January 1, 1997, the
Company completed a cash merger transaction, by which it acquired the
remaining outstanding shares of Datalogix International, Inc. for
approximately $82,000,000 in cash. The Company received an appraisal of
Datalogix International, Inc. which indicated that $36,800,000 of the acquired
intangible assets consisted of in-process research and development. In the
opinion of management and the appraiser, the acquired in-process research and
development had not yet reached technological feasibility and had no
alternative future uses. Accordingly, the Company recorded a special charge of
$36,800,000 in the accompanying condensed consolidated statement of operations
in the third quarter of fiscal 1997. The remaining intangible assets acquired
are being amortized over a five year period. Amortization expenses of
approximately $700,000 were included in the accompanying condensed
consolidated statement of operations in the third quarter of fiscal 1997.
On July 27, 1995, the Company completed the acquisition of the on-line
analytical processing business of Information Resources, Inc. for $100,000,000
in cash. The Company received an appraisal of certain intangible assets which
indicated that $50,931,000 of the acquired intangible assets consisted of in-
process research and development. In the opinion of management and the
appraiser, the acquired in-process research and development had not yet
reached technological feasibility and had no alternative future uses.
Accordingly, the Company recorded a special charge of $50,931,000 in the
accompanying condensed consolidated statement of operations in the first
quarter of fiscal 1996. The remaining intangible assets acquired are being
amortized over a five year period. Amortization expenses of approximately
$4,500,000 and $3,500,000 were included in the accompanying condensed
consolidated statements of operations in the first nine months of fiscal 1997
and 1996, respectively.
4. LONG TERM DEBT
During the third quarter of fiscal 1997, the Company issued $150,000,000 in
6.72% Senior Notes due in the year 2004 and $150,000,000 in 6.91% Senior Notes
due in the year 2007. The Senior Notes are unsecured general obligations of
the Company that rank on a parity with all other unsecured and unsubordinated
indebtedness of the Company that may be outstanding.
6
<PAGE>
5. COMMITMENTS
In December 1996, the Company entered into a seven year master lease facility
which provides for the construction or purchase of up to $150,000,000 of
property and improvements to be leased to the Company. The Company's
obligation to make lease payments generally will begin as property is
constructed or purchased. The Company's obligations under the lease facility
currently are collateralized by U.S. treasury securities. The Company has the
discretion to substitute other collateral for the treasury securities. The
Company may, at its option, purchase the leased properties during the term of
the lease at approximately the amount expended by the lessor to construct or
purchase such properties. In the event that the Company does not exercise its
purchase option, the Company has agreed to guarantee that the properties will
have a specified residual value which will be determined at the lease
inception date for each property. As of February 28, 1997, the Company has
drawn down $19,500,000 of the master lease facility. Leases under the
provisions of this agreement will be accounted for as operating leases.
FORWARD-LOOKING STATEMENTS
In addition to historical information contained herein, this Quarterly Report
contains forward-looking statements. The forward-looking statements contained
herein are subject to certain risks and uncertainties that could cause actual
results to differ materially from those reflected in these forward-looking
statements. Factors that might cause such a difference include, but are not
limited to, those discussed in the section entitled "Management's Discussion
and Analysis of Financial Condition and Results of Operations--Factors That
May Affect Future Results and Market Price of Stock." Readers are cautioned
not to place undue reliance on these forward-looking statements, which reflect
management's opinions only as of the date hereof. The Company undertakes no
obligation to publicly release the results of any revision to these forward-
looking statements. Readers should carefully review the risk factors described
in other documents the Company files from time to time with the Securities and
Exchange Commission, including the Annual Report on Form 10-K for the fiscal
year ended May 31, 1996 and the Quarterly Reports on Form 10-Q filed by the
Company in fiscal 1997.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Total revenues increased 35% in both the third quarter and first nine months
of fiscal 1997 as compared to the corresponding periods in fiscal 1996.
Domestic revenues increased 41% and 44% in the third quarter and first nine
months of fiscal 1997, respectively, while international revenues increased
30% in both the third quarter and first nine months of fiscal 1997 as compared
to the corresponding periods in fiscal 1996. International revenues were
unfavorably affected in the third quarter and first nine months of fiscal 1997
when compared to the corresponding periods of the prior year as a result of
the strengthening of the U. S. dollar against certain major international
currencies. International revenues expressed in local currency increased in
the third quarter and first nine months of fiscal 1997 by approximately 36%
and 35%, respectively, from the corresponding periods of fiscal 1996.
International revenues constituted approximately 55% and 57% of total revenues
in the third quarters of fiscal 1997 and 1996, respectively, and 56% and 58%
of total revenues in the first nine months of fiscal 1997 and 1996,
respectively. Management expects that the Company's international operations
will continue to provide a significant portion of total revenues. However,
international revenues will be adversely affected if the U.S. dollar continues
to strengthen against certain major international currencies.
REVENUES:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
---------------------------- ----------------------------
FEB 28, FEB 29, FEB 28, FEB 29,
1997 CHANGE 1996 1997 CHANGE 1996
---------- ------ ---------- ---------- ------ ----------
<S> <C> <C> <C> <C> <C> <C>
Licenses and other...... $ 681,108 29% $ 528,351 $1,767,093 26% $1,397,019
Percentage of revenues.. 49.6% 51.8% 47.3% 50.6%
Services................ $ 691,504 41% $ 491,888 $1,969,212 45% $1,362,207
Percentage of revenues . 50.4% 48.2% 52.7% 49.4%
Total revenues........ $1,372,612 35% $1,020,239 $3,736,305 35% $2,759,226
</TABLE>
7
<PAGE>
LICENSES AND OTHER REVENUES. License revenues represent fees earned for
granting customers licenses to use the Company's software products. License
revenues also include revenues from the Company's systems integration
business, documentation revenues and other miscellaneous revenues, which
constituted 2% and 3% of total license and other revenues in the third
quarters of fiscal 1997 and 1996, respectively, and 3% in the first nine
months of both fiscal 1997 and 1996. License revenue growth rates were 29% and
35% in the third quarters of fiscal 1997 and 1996, respectively, and 26% and
33% in the first nine months of fiscal 1997 and 1996, respectively. The
Company's license revenues continue to benefit from an overall increase in
market demand for database and related products and increased market
acceptance of the Company's relational DBMS and applications products. The
lower license revenue growth rate experienced in the third quarter and first
nine months of fiscal 1997 was due primarily to continued weakness in the
performance of certain of its international subsidiaries as well as the
strengthening of the U.S. dollar.
SERVICE REVENUES. Support, consulting and education services revenues in the
third quarter and first nine months of fiscal 1997 each increased from the
corresponding periods of fiscal 1996. The Company's support revenues continued
to constitute the largest portion of service revenues in the third quarter and
first nine months of fiscal 1997. Support revenues grew 45% and 47% in the
third quarter and first nine months of fiscal 1997, respectively, when
compared to the corresponding periods in fiscal 1996. This growth reflects the
continued increase in the installed base of the Company's products under
support contracts as well as an increase in the number of customers electing
higher support service offerings. Consulting and education services grew 37%
and 47% in the third quarters of fiscal 1997 and 1996, respectively, and 43%
and 47% in the first nine months of fiscal 1997 and 1996, respectively. The
Company continued to expand its services to assist customers in the use and
implementation of applications based on the Company's products.
OPERATING EXPENSES:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
-------------------------- ----------------------------
FEB 28, FEB 29, FEB 28, FEB 29,
1997 CHANGE 1996 1997 CHANGE 1996
--------- ------ --------- ---------- ------ ----------
<S> <C> <C> <C> <C> <C> <C>
Sales and marketing..... $ 460,361 26% $ 365,282 $1,274,899 27% $1,000,955
Percentage of revenues.. 33.5% 35.8% 34.1% 36.3%
Cost of services........ $ 401,441 40% $ 286,843 $1,115,031 44% $ 773,774
Percentage of revenues . 29.2% 28.1% 29.8% 28.0%
Research and development
(1).................... $ 138,527 49% $ 92,805 $ 391,036 45% $ 270,518
Percentage of revenues.. 10.1% 9.1% 10.5% 9.8%
General and
administrative.......... $ 75,356 36% $ 55,367 $ 215,349 31% $ 164,303
Percentage of revenues . 5.5% 5.4% 5.8% 6.0%
Acquired in-process
research and
development............. $ 36,800 * $ -- $ 36,800 (28%) $ 50,931
Percentage of revenues . 2.7% -- 1.0% 1.8%
</TABLE>
- --------
* Not meaningful
(1) Pursuant to Statement of Financial Accounting Standards No. 86, the
Company capitalized software development costs equal to 0.4% and 1.1% of
total revenues during the third quarters of fiscal 1997 and 1996,
respectively, and 0.6% and 1.3% of total revenues in the first nine months
of fiscal 1997 and 1996, respectively.
International expenses were favorably affected in the third quarter and first
nine months of fiscal 1997 when compared to the corresponding periods in the
prior year due to the strengthening of the U. S. dollar against certain major
international currencies.
SALES AND MARKETING EXPENSES. The Company continues to place significant
emphasis, both domestically and internationally, on direct sales through its
own sales force. However, the Company also continues to market its products
through indirect channels in order to increase market share while reducing
distribution costs. As a
8
<PAGE>
percentage of total revenues, sales and marketing expenses decreased in the
third quarter and first nine months of fiscal 1997 when compared to the
corresponding periods of fiscal 1996 due primarily to increased revenue
levels. Included in sales and marketing expenses is the amortization of
capitalized software development costs (see below).
COST OF SERVICES. The cost of providing services consists largely of
consulting, education, and support personnel expenses. As a percentage of
service revenues, cost of services was 58% of revenues in the third quarters
of both fiscal 1997 and 1996, and 57% in the first nine months of both fiscal
1997 and 1996.
RESEARCH AND DEVELOPMENT EXPENSES. Research and development expenses for the
third quarters of both fiscal 1997 and 1996 would have been 10% of total
revenues without the capitalization of software development costs in
accordance with Statement of Financial Accounting Standards No. 86. Before
considering the impact of software capitalization, research and development
expenses increased 39% from the third quarter of fiscal 1996 and 35% from the
first nine months of fiscal 1996 to the corresponding periods of fiscal 1997
(49% and 45% after the adjustment for software capitalization). A portion of
this increase was due to research and development staff hired in connection
with the acquisitions of Datalogix International, Inc. and the on-line
analytical processing business of Information Resources, Inc. The Company
capitalized approximately $5,533,000 and $11,127,000 during the third quarters
of fiscal 1997 and 1996, respectively, and $22,424,000 and $36,477,000 in the
corresponding nine month periods. Amortization of capitalized software
development costs is charged to sales and marketing expenses and totaled
$5,466,000 and $11,475,000 in the third quarters of fiscal 1997 and 1996,
respectively, and $22,605,000 and $37,382,000 in the corresponding nine month
periods. The Company believes that research and development expenditures are
essential to maintaining its competitive position and expects these costs to
continue to constitute a significant percentage of revenues.
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative expenses as a
percentage of total revenues were 5.5% and 5.4% in the third quarters of
fiscal 1997 and 1996, respectively, and 5.8% and 6.0% in the corresponding
nine month periods.
ACQUIRED IN-PROCESS RESEARCH AND DEVELOPMENT. Based on the results of a third-
party appraisal, the Company recorded a special charge of $36,800,000 in the
third quarter of fiscal 1997 and $50,931,000 in the first quarter of fiscal
1996 to expense in-process research and development costs related to the
acquisitions of Datalogix International, Inc. and the on-line analytical
processing business of Information Resources, Inc., respectively.
OTHER INCOME (EXPENSE):
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
---------------------- ----------------------
FEB 28, FEB 29, FEB 28, FEB 29,
1997 CHANGE 1996 1997 CHANGE 1996
------- ------ ------- ------- ------ -------
<S> <C> <C> <C> <C> <C> <C>
Other income (expense)......... $ 4,330 153% $ 1,709 $17,935 52% $11,791
Percentage of revenues ........ 0.3% 0.2% 0.5% 0.4%
</TABLE>
Changes in non-operating expenses primarily reflect fluctuations in interest
income and expense related to changes in cash and debt balances and interest
rates. They also reflect foreign exchange and other miscellaneous income and
expense items. Additionally, the Company realized a gain of approximately
$3,100,000 during the first three months of fiscal 1996 related to the sale of
a portion of its investment in Datalogix International, Inc.
9
<PAGE>
PROVISION FOR INCOME TAXES:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
------------------------ -------------------------
FEB 28, FEB 29, FEB 28, FEB 29,
1997 CHANGE 1996 1997 CHANGE 1996
-------- ------ -------- -------- ------ ---------
<S> <C> <C> <C> <C> <C> <C>
Provision for income
taxes................... $ 95,204 26% $ 75,361 $259,605 50% $ 173,582
Percentage of revenues . 6.9% 7.4% 6.9% 6.3%
</TABLE>
The Company's estimated effective tax rate for the first nine months of fiscal
1997 was 36% as compared to a 34% tax rate in the corresponding period of
fiscal 1996.
NET INCOME AND EARNINGS PER SHARE:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
------------------------ -------------------------
FEB 28, FEB 29, FEB 28, FEB 29,
1997 CHANGE 1996 1997 CHANGE 1996
-------- ------ -------- -------- ------ ---------
<S> <C> <C> <C> <C> <C> <C>
Net income................ $169,253 16% $146,290 $461,520 37% $ 336,954
Percentage of revenues ... 12.3% 14.3% 12.4% 12.2%
Earnings per share........ $ 0.25 14% $ 0.22 $ 0.68 36% $ 0.50
</TABLE>
LIQUIDITY AND CAPITAL RESOURCES:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
---------------------------
FEB 28, FEB 29,
1997 CHANGE 1996
---------- ------ ---------
<S> <C> <C> <C>
Working capital................................ $1,235,676 75% $ 705,910
Cash and cash investments...................... $1,073,431 49% $ 719,196
Cash provided by operating activities.......... $ 503,156 (4%) $ 524,400
Cash used for investing activities............. $ 501,782 35% $ 371,146
Cash provided by (used for) financing
activities..................................... $ 35,290 357% $ (13,711)
</TABLE>
Working capital increased in the first nine months of fiscal 1997 over the
corresponding prior year period, due primarily to cash flow from operations as
well as proceeds from the issuance of Senior Notes, offset in part by stock
repurchases, which resulted in higher cash levels.
The Company generated slightly lower cash flows from operations in the first
nine months of fiscal 1997 over fiscal 1996, due primarily to larger cash
payments for income taxes.
Cash used for investing activities increased in the first nine months of
fiscal 1997 as compared to the corresponding period of the prior year, due
primarily to changes in the levels of cash investments. In both periods, the
Company made significant investments in capital expenditures. In addition, the
Company acquired Datalogix International, Inc. for $82,000,000 in cash in the
third quarter of fiscal 1997 ($58,000,000 net of cash assumed) and the on-line
analytical processing business of Information Resources, Inc. for $100,000,000
in cash in the first quarter of fiscal 1996.
The Company's Board of Directors has approved the repurchase of up to
37,000,000 shares of Common Stock on the open market to reduce the dilutive
effect of the Company's stock plans. Pursuant to this repurchase program, the
Company repurchased 8,457,500 shares of the Company's Common Stock for
approximately $347,256,000 during the first nine months of fiscal 1997. To
date, the Company has repurchased a total of 30,574,509 shares of the
Company's Common Stock for approximately $660,987,000. The Company has used
cash flow from operations and proceeds from the issuance of Senior Notes to
repurchase the Company's Common Stock, and to invest in working capital and
other assets to support its growth.
During the third quarter of fiscal 1997, the Company issued $150,000,000 in
6.72% Senior Notes due in the year 2004 and $150,000,000 in 6.91% Senior Notes
due in the year 2007. The Senior Notes are unsecured general obligations of
the Company that rank on a parity with all other unsecured and unsubordinated
indebtedness of the Company that may be outstanding.
10
<PAGE>
At February 28, 1997, the Company also had other outstanding debt of
approximately $11,301,000, primarily in the form of other notes payable and
capital leases.
The Company anticipates that current cash balances and anticipated cash flows
from operations will be sufficient to meet its working capital and capital
expenditure needs at least through the next twelve months.
FACTORS THAT MAY AFFECT FUTURE RESULTS AND MARKET PRICE OF STOCK
The Company operates in a rapidly changing environment that involves numerous
risks, some of which are beyond the Company's control. The following
discussion highlights some of these risks.
MANAGEMENT OF GROWTH. The Company has a history of rapid growth. The Company's
future operating results will depend on management's ability to manage growth,
continuously hire and retain significant numbers of qualified employees,
forecast revenues and control expenses. An unexpected decline in the growth
rate of revenues without a corresponding and timely slowdown in expense growth
could have a material adverse effect on the Company's business, results of
operations or financial condition.
COMPETITIVE ENVIRONMENT. The computer software industry is an intensely
competitive industry with several large vendors that develop and market
databases, applications, development tools or decision support products.
Certain of these vendors have significantly more financial and technical
resources than the Company. If new competitive products are introduced into
one or more of the Company's various markets, the Company's business could be
adversely affected. In addition, new distribution methods (e.g. electronic
channels) and opportunities presented by the Internet have removed many of the
barriers to entry historically faced by small and start-up companies in the
software industry. The Company expects to face increasing competition from
such companies in the various markets in which it competes.
PRICING. Intense competition in the various markets in which the Company
competes may put pressure on the Company to reduce prices on certain products,
particularly in the enterprise and departmental database marketplace where
certain vendors offer deep discounts in an effort to recapture or gain
marketshare. In addition, the bundling of software products for promotional
purposes or as a long-term pricing strategy by certain of the Company's
competitors could have the effect over time of significantly reducing the
prices that the Company can charge for its products. Shifts toward the use of
operating systems on which the Company experiences relatively greater price
competition could result in lower average license prices, thereby reducing
license revenues for the Company. Any such price reductions and resulting
lower license revenues could materially and adversely affect the Company's
results of operations or financial condition if the Company cannot offset
these price reductions with a corresponding increase in sales volumes.
INDUSTRY GROWTH AND ECONOMIC CONDITIONS. The strength and profitability of the
Company's business depends on the overall demand for computer software and
growth in the computer industry. Because the Company's sales are primarily to
major corporate, government, education and other business customers, the
Company's business also partly depends on general economic and business
conditions. A softening of demand for computer software, caused by a weakening
of the economy or otherwise, may result in decreased revenues or declining
revenue growth rates for the Company.
NEW PRODUCTS. The markets for the Company's products are characterized by
rapid technological advances in hardware and software development, evolving
standards in computer hardware and software technology, and frequent new
product introductions and enhancements. Product introductions and short
product life cycles necessitate high levels of expenditure for research and
development. To maintain its competitive position, the Company must enhance
and improve existing products and continue to introduce new products and new
versions of existing products that keep pace with technological developments,
satisfy increasingly sophisticated customer requirements and achieve market
acceptance. The Company's inability to port to or run on new or increasingly
popular operating systems, or the Company's failure to successfully improve,
position and/or price its products, could have a material adverse effect on
the Company's operating results.
11
<PAGE>
Significant undetected errors or delays in new products or new versions of a
product may affect market acceptance of the Company's products and adversely
affect operating results. If the Company were to experience delays in the
commercialization and introduction of new or enhanced products, if customers
were to experience significant problems with the implementation and
installation of products or if customers were dissatisfied with product
functionality or performance, the Company's business and operating results
could be materially adversely affected.
There can be no assurance that the Company's new products will achieve
significant market acceptance or will generate significant revenue. Additional
products that the Company plans to market in the future are in various stages
of development. Some of these products, such as network computer and on-line
analytical processing (OLAP) products, are in business areas that are new to
the Company's product development and sales and product marketing personnel.
See "New Business Areas."
UNEVEN PATTERNS OF QUARTERLY OPERATING RESULTS. The Company's revenues in
general, and its license revenues in particular, are relatively difficult to
forecast and vary from quarter to quarter due to various factors, including
(i) the relatively long sales cycles for the Company's products, (ii) the size
and timing of individual license transactions, (iii) the timing of the
introduction of new products or product enhancements by the Company or its
competitors, (iv) the potential for delay or deferral of customer
implementations of the Company's software, (v) changes in customer budgets,
and (vi) seasonality of technology purchases and other general economic
conditions. Accordingly, the Company's quarterly results are difficult to
predict until the end of the quarter, and delays in product delivery or
closing of sales near the end of a quarter can cause quarterly revenues and
net income to fall significantly short of anticipated levels.
The Company's license revenues in any quarter are substantially dependent on
orders booked and shipped in that quarter. Because the Company's operating
expenses are based on anticipated revenue levels and because a high percentage
of the Company's expenses are relatively fixed, a delay in the recognition of
revenue from even a limited number of license transactions could cause
significant variations in operating results from quarter to quarter and could
cause net income to fall significantly short of anticipated levels.
SALES FORCE AND ALTERNATE DISTRIBUTION CHANNELS. The Company historically has
relied heavily on its direct sales force. However, the Company is moving
increasingly toward indirect, electronic and other alternate distribution
channels to meet competitive demands. In addition, the Company is training and
reorganizing part of its sales force to provide specialized expertise within
certain vertical markets. There can be no assurance that the Company will be
successful in increasing sales within these alternate distribution channels or
within these industries. If the Company is not successful, it may lose
significant sales opportunities.
UNCERTAINTY OF EMERGING AREAS. The impact on the Company of emerging areas
such as the Internet, on-line services and electronic commerce is uncertain.
There can be no assurance that the Company will be able to provide a product
offering that will satisfy new customer demands in these areas. In addition,
standards for network protocols, as well as other industry adopted and de
facto standards for the Internet, are evolving rapidly. There can be no
assurance that standards chosen by the Company will position its products to
compete effectively for business opportunities as they arise on the Internet
and other emerging areas.
NEW BUSINESS AREAS. The Company has in recent years diversified into a number
of new business areas including Internet, on-line services, electronic
commerce, interactive media applications and data warehousing. It also has
begun to develop hardware reference specifications and to promote the use of
network computers. These areas are new to the Company's product development
and sales and marketing personnel. There is no assurance that the Company will
compete effectively or will generate significant revenues in these new areas.
The Company's success with its current network computer products and network
computers generally is difficult to predict because network computers
represent a method of computing that is new to the entire computer industry.
The successful introduction of network computers to the market will depend in
large measure on the commitment by hardware vendors to manufacture, promote
and distribute network computers. There can be no assurance that sufficient
numbers of hardware vendors will undertake this commitment, that the market
will accept network computers or that network computers will generate
significant revenues to the Company. See "New Products."
12
<PAGE>
HIRING AND RETENTION OF EMPLOYEES. The Company's continued growth and success
depend to a significant extent on the continued service of senior management
and other key employees and the hiring of new qualified employees. Competition
for highly-skilled business, product development, technical and other
personnel is intense. There can be no assurance that the Company will be
successful in continuously recruiting new personnel and in retaining existing
personnel. None of the Company's employees is subject to a long-term
employment or a noncompetition agreement. The loss of one or more key
employees or the Company's inability to attract additional qualified employees
or retain other employees could have a material adverse effect on the
continued growth of the Company. In addition, the Company may experience
increased compensation costs in order to compete for skilled employees.
INTERNATIONAL SALES. A substantial portion of the Company's revenues is
derived from international sales and is therefore subject to the risks
attendant thereto, including the general economic conditions in each country,
the overlap of different tax structures, the difficulty of managing an
organization spread over various countries, changes in regulatory
requirements, compliance with a variety of foreign laws and regulations and
longer payment cycles in certain countries. The Company has experienced
relatively slower growth rates in its European operations, primarily as a
result of senior management changes in several major European countries,
slower adoption of information technology in the European markets and a strong
U.S. dollar. There can be no assurance the Company will be able to
successfully address each of these challenges in the near term. Other risks
associated with international operations include import and export licensing
requirements, trade restrictions and changes in tariff rates.
A significant portion of the Company's business is conducted in currencies
other than the U.S. dollar. Changes in the value of major foreign currencies
relative to the value of the U.S. dollar therefore could adversely affect
future revenues and operating results. Foreign currency transaction gains and
losses are primarily related to sublicense fee agreements between the Company
and selling distributors and subsidiaries. These gains and losses are charged
against earnings in the period incurred.
The Company has reduced its transaction and translation gains and losses
associated with converting foreign currencies into U.S. dollars by using
forward foreign exchange contracts to hedge transaction and translation
exposures in major currencies. Such contracts meet the criteria established in
FASB 52 for hedge accounting treatment. The Company finds it impractical to
hedge all foreign currencies in which it conducts business. As a result, the
Company will continue to experience foreign currency gains and losses.
RISKS ASSOCIATED WITH FUTURE ACQUISITIONS. As part of its business strategy,
the Company has acquired, effective January 1, 1997, Datalogix International,
Inc. ("Datalogix") and expects to make acquisitions of, or significant
investments in, businesses that offer complementary products, services and
technologies. The Datalogix acquisition and any future acquisitions or
investments will be accompanied by the risks commonly encountered in
acquisitions of businesses. Such risks include, among other things, the
difficulty of assimilating the operations and personnel of the acquired
businesses, the potential disruption of the Company's ongoing business, the
inability of management to maximize the financial and strategic position of
the Company, the maintenance of uniform standards, controls, procedures and
policies and the impairment of relationships with employees and clients as a
result of any integration of new management personnel. These factors could
have a material adverse effect on the Company's business, results of
operations or financial condition. Consideration paid for future acquisitions,
if any, could be in the form of cash, stock, rights to purchase stock or a
combination thereof. Dilution to existing stockholders and to earnings per
share may result to the extent that shares of stock or other rights to
purchase stock are issued in connection with any such future acquisitions.
RELATIVE PRODUCT PROFITABILITY. Certain of the Company's revenues are derived
from products which, as a percentage of revenues, currently require a higher
level of development, distribution and support expenditures compared to
certain of its other core products. To the extent that revenues generated from
such products become a greater percentage of the Company's total revenues, the
Company's operating margins may be adversely affected, unless the expenses
associated with such products decline as a percentage of revenues.
13
<PAGE>
ENFORCEMENT OF THE COMPANY'S INTELLECTUAL PROPERTY RIGHTS. Despite the
Company's efforts to protect its intellectual property rights, it may be
possible for unauthorized third parties to copy certain portions of the
Company's products or to reverse engineer or obtain and use technology or
other information that the Company regards as proprietary. In addition, the
laws of certain countries do not protect the Company's proprietary rights to
the same extent as do the laws of the United States. Accordingly, there can be
no assurance that the Company will be able to protect its proprietary
technology against unauthorized third party copying or use, which could
adversely affect the Company's competitive position.
The Company from time to time receives notices from third parties claiming
infringement by the Company's products of third party patent and other
intellectual property rights. The Company expects that software products will
increasingly be subject to such claims as the number of products and
competitors in the Company's industry segments grows and the functionality of
products overlaps. Regardless of its merit, any such claim could be time-
consuming, result in costly litigation and require the Company to enter into
royalty and licensing agreements which may not be offered or available on
terms acceptable to the Company. If a successful claim is made against the
Company and the Company fails to develop or license a substitute technology,
the Company's business and operating results could be materially adversely
affected.
POSSIBLE VOLATILITY OF STOCK PRICE. The market price of the Company's Common
Stock has experienced significant fluctuations and may continue to fluctuate
significantly. The market price of the Common Stock may be significantly
affected by factors such as the announcement of new products or product
enhancements by the Company or its competitors, technological innovation by
the Company or its competitors, quarterly variations in the Company's or its
competitors' results of operations, changes in prices of the Company's or its
competitors' products and services, changes in revenue and revenue growth
rates for the Company as a whole or for specific geographic areas, business
units, products or product categories, changes in earnings estimates by market
analysts, speculation in the press or analyst community and general market
conditions or market conditions specific to particular industries. The stock
prices for many companies in the technology sector have experienced wide
fluctuations which often have been unrelated to their operating performance.
Such fluctuations may adversely affect the market price of the Company's
Common Stock.
LONG-TERM INVESTMENT CYCLE. Developing and localizing software is expensive
and the investment in product development often involves a long payback cycle.
The Company's plans for its fiscal year ending May 31, 1997 include
significant investments in software research and development and related
product opportunities from which significant revenues are not anticipated for
several years.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
A shareholder derivative lawsuit was filed in the Superior Court of the State
of California, County of San Mateo, on October 23, 1995. The derivative suit
was brought by Company stockholders, allegedly on behalf of the Company,
against certain of the Company's present and former officers and directors.
The derivative plaintiffs allege primarily that these officers and directors
intentionally or negligently breached their fiduciary duties to the Company by
allegedly engaging or acquiescing in certain activities related to nCUBE, a
company in which Oracle's Chief Executive Officer owns a controlling interest.
On March 25, 1997, the court dismissed the action pursuant to the defendants'
motion to dismiss.
The Company is subject to various other legal proceedings and claims, either
asserted or unasserted, which arise in the ordinary course of business. While
the outcome of these claims cannot be predicted with certainty, management
does not believe that the outcome of any of these legal matters will have a
material adverse effect on the Company's consolidated results of operations or
consolidated financial position.
14
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
<TABLE>
<C> <S>
4.1 Indenture between Oracle Corporation and State Street Bank and Trust
Company of California, N. A.
27.1 Financial Data Schedule
</TABLE>
(b) Reports on Form 8-K
None
15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, Oracle
Corporation has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ORACLE CORPORATION
Dated: April 10, 1997 By:/s/ JEFFREY O. HENLEY
---------------------------------------
Jeffrey O. Henley
Executive Vice President and Chief
Financial Officer
Dated: April 10, 1997 By:/s/ THOMAS A. WILLIAMS
---------------------------------------
Thomas A. Williams
Vice President and Corporate Controller
16
<PAGE>
ORACLE CORPORATION
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT # EXHIBIT TITLES
--------- --------------
<C> <S>
4.1 Indenture between Oracle Corporation and State Street Bank and Trust
Company of California, N.A.
27.1 Financial Data Schedule
</TABLE>
<PAGE>
EXHIBIT 4.1
================================================================================
ORACLE CORPORATION
TO
STATE STREET BANK and TRUST COMPANY OF CALIFORNIA, N.A.
Trustee
-----------------------------------------------
Indenture
Dated as of February 24, 1997
-----------------------------------------------
Debt Securities
================================================================================
<PAGE>
ORACLE CORPORATION
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive,
of the Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- ------------------ -----------------
<S> <C>
(S) 310(a)(1)...................................... 609
(a)(2)...................................... 609
(a)(3)...................................... Not Applicable
(a)(4)...................................... Not Applicable
(b)......................................... 608
610
(S) 311(a)......................................... 613
(b)......................................... 613
(S) 312(a)......................................... 701
702(a)
(b)......................................... 702(b)
(c)......................................... 702(c)
(S) 313(a)......................................... 703(a)
(b)......................................... 703(a)
(c)......................................... 703(a)
(d)......................................... 703(b)
(S) 314(a)......................................... 704
(a)(4)...................................... 101
1004
(b)......................................... Not Applicable
(c)(1)...................................... 102
(c)(2)...................................... 102
(c)(3)...................................... Not Applicable
(d)......................................... Not Applicable
(e)......................................... 102
(S) 315(a)......................................... 601
(b)......................................... 602
(c)......................................... 601
(d)......................................... 601
(e)......................................... 514
(S) 316(a)......................................... 101
(a)(1)(A)................................... 502
512
(a)(1)(B)................................... 513
(a)(2)...................................... Not Applicable
(b)......................................... 508
(c)......................................... 104(c)
(S) 317(a)(1)...................................... 503
(a)(2)...................................... 504
(b)......................................... 1003
(S) 318(a)......................................... 107
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION....................... 1
Section 101. Definitions............................................................. 1
Section 102. Certificates and Opinions............................................... 9
Section 103. Form of Documents Delivered to Trustee.................................. 10
Section 104. Acts of Holders; Record Dates........................................... 10
Section 105. Notices, Etc., to Trustee and Company................................... 12
Section 106. Notice to Holder; Waiver................................................ 12
Section 107. Conflict with Trust Indenture Act....................................... 13
Section 108. Effect of Holdings and Table of Contents................................ 13
Section 109. Successors and Assigns.................................................. 13
Section 110. Separability Clause..................................................... 13
Section 111. Benefits of Indenture................................................... 13
Section 112. Governing Law........................................................... 13
Section 113. Legal Holidays.......................................................... 13
ARTICLE TWO - SECURITY FORMS................................................................ 14
Section 201. Forms Generally......................................................... 14
Section 202. Form of Face of Security................................................ 16
Section 203. Form of Reverse of Security............................................. 16
Section 204. Form of Legend for Global Securities.................................... 20
Section 205. Form of Trustee's Certificate of Authentication......................... 20
ARTICLE THREE - THE SECURITIES.............................................................. 21
Section 301. Amount Unlimited; Issuable in Series.................................... 21
Section 302. Denominations........................................................... 24
Section 303. Execution, Authentication, Delivery and Dating.......................... 24
Section 304. Temporary Securities.................................................... 25
Section 305. Registration, Registration of Transfer and Exchange..................... 26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........................ 27
Section 307. Payment of Interest: Interest Rights Preserved.......................... 28
Section 308. Persons Deemed Owners................................................... 30
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
Section 309. Cancellation............................................................ 30
Section 310. Computation of Interest................................................. 31
ARTICLE FOUR - SATISFACTION AND DISCHARGE................................................... 31
Section 401. Satisfaction and Discharge of Indenture................................. 31
Section 402. Application of Trust Money.............................................. 32
ARTICLE FIVE - REMEDIES..................................................................... 33
Section 501. Events of Default....................................................... 33
Section 502. Acceleration of Maturity; Rescission and Annulment...................... 35
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee......... 37
Section 504. Trustee May File Proofs of Claim........................................ 38
Section 505. Trustee May Enforce Claims Without Possession of Securities............. 38
Section 506. Application of Money Collected.......................................... 38
Section 507. Limitation on Suits..................................................... 39
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest 39
Section 509. Restoration of Rights and Remedies...................................... 40
Section 510. Rights and Remedies Cumulative.......................................... 40
Section 511. Delay or Omission Not Waiver............................................ 40
Section 512. Control by Holders...................................................... 40
Section 513. Waiver of Past Defaults................................................. 41
Section 514. Undertaking for Costs................................................... 42
Section 515. Waiver of Stay or Extension Laws........................................ 42
ARTICLE SIX - THE TRUSTEE................................................................... 42
Section 601. Certain Duties and Responsibilities..................................... 42
Section 602. Notice of Defaults...................................................... 42
Section 603. Certain Rights of Trustee............................................... 43
Section 604. Not Responsible for Recitals or Issuance of Securities.................. 44
Section 605. Money Held in Securities................................................ 44
Section 606. Money Held in Trust..................................................... 44
Section 607. Compensation and Reimbursement.......................................... 44
Section 608. Disqualification; Conflicting Interests................................. 45
Section 609. Corporate Trustee Required; Eligibility................................. 45
Section 610. Resignation and Removal; Appointment of Successor....................... 45
Section 611. Acceptance of Appointment by Successor.................................. 47
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
Section 612. Merger, Conversion, Consolidation or Succession to Business............. 48
Section 613. Preferential Collection of Claims Against Company....................... 48
Section 614. Appointment of Authenticating Agent..................................... 48
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY........................... 51
Section 701. Company to Furnish Trustee Names and Addresses of Holders............... 51
Section 702. Preservation of Information; Communications to Holders.................. 51
Section 703. Reports by Trustee...................................................... 52
Section 704. Reports by Company...................................................... 52
ARTICLE EIGHT - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE........................ 52
Section 801. Company May Consolidate, Etc., Only on Certain Terms.................... 52
Section 802. Successor Substituted................................................... 53
ARTICLE NINE - SUPPLEMENTAL INDENTURES...................................................... 53
Section 901. Supplemental Indentures Without Consent of Holders...................... 53
Section 902. Supplemental Indentures with Consent of Holders......................... 55
Section 903. Execution of Supplemental Indentures.................................... 56
Section 904. Effect of Supplemental Indentures....................................... 56
Section 905. Conformity with Trust Indenture Act..................................... 56
Section 906. Reference in Securities to Supplemental Indentures...................... 56
ARTICLE TEN - COVENANTS..................................................................... 56
Section 1001. Payment of Principal, Premium and Interest.............................. 56
Section 1002. Maintenance of Office or Agency......................................... 57
Section 1003. Money for Securities Payments to Be Held in Trust....................... 57
Section 1004. Statement by Officers as to Default..................................... 58
Section 1005. Existence............................................................... 58
Section 1006. Maintenance of Properties............................................... 59
Section 1007. Payment of Taxes and Other Claims....................................... 59
Section 1008. Limitations on Liens.................................................... 59
Section 1009. Limitations on Sale and Lease-Back Transactions......................... 61
Section 1010. Waiver of Certain Covenants............................................. 61
</TABLE>
-iii-
<PAGE>
<TABLE>
<S> <C>
ARTICLE ELEVEN - REDEMPTION OF SECURITIES................................................... 63
Section 1101. Applicability of Article................................................ 63
Section 1102. Election to Redeem; Notice to Trustee................................... 63
Section 1103. Selection by Trustee of Securities to Be Redeemed....................... 63
Section 1104. Notice of Redemption.................................................... 64
Section 1105. Deposit of Redemption Price............................................. 65
Section 1106. Securities Payable on Redemption Date................................... 65
Section 1107. Securities Redeemed in Part............................................. 66
ARTICLE TWELVE - SINKING FUNDS.............................................................. 66
Section 1201. Applicability of Article................................................ 66
Section 1202. Satisfaction of Sinking Fund Payments with Securities................... 66
Section 1203. Redemption of Securities for Sinking Fund............................... 67
ARTICLE THIRTEEN - DEFEASANCE AND COVENANT DEFEASANCE...................................... 67
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance............ 67
Section 1302. Defeasance and Discharge................................................ 67
Section 1303. Covenant Defeasance..................................................... 68
Section 1304. Conditions to Defeasance or Covenant Defeasance......................... 68
Section 1305. Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions........................................ 70
Section 1306. Reinstatement........................................................... 70
ARTICLE FOURTEEN - REPAYMENT AT OPTION OF SECURITY HOLDERS.................................. 71
Section 1401. Applicability of Article................................................ 71
Section 1402. Repayment of Securities................................................. 71
Section 1403. Exercise of Option; Notice.............................................. 71
Section 1404. Securities Payable on the Repayment Date................................ 72
</TABLE>
Note: This table of contents shall not, for any purpose, be deemed to be
part of the Indenture.
-iv-
<PAGE>
INDENTURE, dated as of February 24, 1997, between ORACLE CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 500 Oracle
Parkway, Redwood City, California 94065, and State Street Bank and Trust
Company of California, N.A., a national banking association duly organized and
existing under the laws of United States, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provision as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned
<PAGE>
to them in accordance with generally accepted accounting principles in
the United States of America, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect to
any computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means the Trustee any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" has the meaning specified in Section 1009.
"Authenticating Agent" means the Trustee any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act for it in respect
thereof.
"Board Resolution" means 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 with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close, except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
-2-
<PAGE>
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Net Assets" means, as of any particular time, the
aggregate amount of assets (less applicable reserves) at the end of the most
recently completed fiscal quarter after deducting therefrom: (a) all current
liabilities except for (1) notes and loans payable, (2) current maturities of
long-term debt and (3) current maturities of obligations under capital leases,
all as set forth on the most recent quarter-end consolidated balance sheet of
the Company and its consolidated Subsidiaries and computed in accordance with
generally accepted accounting principles.
"Consolidated Net Tangible Assets" means, as of any particular time,
the aggregate amount of assets (less applicable reserves) at the end of
the most recently completed fiscal quarter after deducting therefrom: (a) all
current liabilities, except for (1) notes and loans payable, (2) current
maturities of long-term debt and (3) current maturities of obligations under
capital leases; and (b) to the extent included in said aggregate amount of
assets, all goodwill, trade names, trademarks, patents, organization expenses,
unamortized debt discount and expenses (other than capitalized unamortized
product development costs, such as, without limitation, capitalized hardware and
software development costs), to the extent included in said aggregate amount of
assets, all as set forth on the most recent quarter-end consolidated balance
sheet of the Company and its Consolidated Subsidiaries and computed in
accordance with generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be conducted,
which office, at the date of execution of this Indenture, is located at
725 South Figueroa Street, Suite 3100, Los Angeles, California 90017, Attn:
Corporate Trust Department.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Debt" has the meaning specified in Section 1008.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
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<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exempted Secured Debt" has the meaning specified in Section 1008.
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and registered
in the name of, the Depositary for such Securities or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of the
particular series of Securities established as contemplated by Section 301;
provided, however, that if at any time more than one person is acting as Trustee
- -------- -------
under this Indenture due to the appointment of one or more separate Trustees for
any one or more separate series of Securities, "Indenture" shall mean, with
respect to such series of Securities for which any such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of particular
series of Securities for which such person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such person had become such
Trustee, but to which such person, as such Trustee, was not a party.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" and "mortgages" have the respective meanings specified in
Section 1008.
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<PAGE>
"Nonrecourse Obligation" means indebtedness or other obligations
substantially related to (i) the acquisition of assets not previously owned by
the Company or any Restricted Subsidiary or (ii) the financing of a project
involving the development or expansion of properties of the Company or any
Restricted Subsidiary, as to which the obligee with respect to such indebtedness
or obligation has no recourse to the Company or any Restricted Subsidiary or any
assets of the Company or any Restricted Subsidiary other than the assets which
were acquired with the proceeds of such transaction or the project financed with
the proceeds of such transaction (and the proceeds thereof).
"Notice of Default" means a written notice of the kind specified in
Sections 501(4) and 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, 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" means a written opinion of counsel, who may be
counsel for the Company (and who may be an employee of the Company), or other
counsel acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(1) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
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(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, (a) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (b) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 301 on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (a)
above) of such Security, and (c) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver or upon any
such determination as to the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
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<PAGE>
"Principal Property" means the land, land improvements, buildings and
fixtures (to the extent they constitute real property interests) (including any
leasehold interest therein) constituting the principal corporate office, any
manufacturing plant or any manufacturing facility (whether owned at the date of
this Indenture or hereafter acquired) which: (a) is owned by the Company or any
Subsidiary; (b) is located within any of the present 50 states of the United
States of America (or the District of Columbia); (c) has not been determined in
good faith by the Board of Directors not to be of material importance to the
business conducted by the Company and its Subsidiaries taken as a whole; and (d)
has a book value on the date as of which the determination is being made of in
excess of 0.75% of Consolidated Net Assets of the Company as most recently
determined on or prior to such date (including for purposes of such calculation
the land, land improvements, buildings and such fixtures comprising such office,
plant or facility, as the case may be).
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary which owns any Principal
Property; provided, however, that the term "Restricted Subsidiary" shall not
include (a) any Subsidiary which is principally engaged in leasing or in
financing receivables, or which is principally engaged in financing the
Company's operations outside the United States of America; (b) any Subsidiary
less than 80% of the voting stock of which is owned, directly or indirectly, by
the Company or by one or more other Subsidiaries or by the Company and one or
more other Subsidiaries if the common stock of such Subsidiary is traded on any
national securities exchange or quoted on the Nasdaq National Market or in the
over-the-counter market; or (c) Oracle Corporation Japan, a Japanese
corporation. For purposes of this definition, "voting stock" has the meaning
specified in the definition of "Subsidiary", below.
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<PAGE>
"Sale and Lease-Back" has the meaning specified in Section 1009.
"Sale and Lease-Back Transaction" means any arrangement with any
Person providing for the leasing to the Company or any Restricted Subsidiary of
any Principal Property which property has been or is to be sold or transferred
by the Company or such Restricted Subsidiary to such Person.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Security or Securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary", as of any date of determination, has the
meaning set forth in Rule 1-02 of Article 1 of Regulation S-X (or any successor
provision) of the Commission.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at least 66 2/3% of the
outstanding voting stock of such corporation is owned at the time, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
-------- -------
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939, as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to
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<PAGE>
the Securities of any series shall mean the Trustee with respect to Securities
of that series.
"U.S. Government Obligations" means securities that are (a) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case under clause (a) or (b) are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company, means any
vice president, whether or not designated by a number or a word or words added
before or after the title "vice president".
Section 102. 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 such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate, or opinion shall be given, in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinions of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than those provided
for in Section 1004) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein related
thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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<PAGE>
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or
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<PAGE>
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action. With regard to any record date set
pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date (or their duly appointed agents), and only
such Persons, shall be entitled to give or take the relevant action, whether or
not such Holders remain Holders after such record date. With regard to any
action that may be given or taken hereunder only by Holders of a requisite
principal amount of Outstanding Securities of any series (or their duly
appointed agents) and for which a record date is set pursuant to this paragraph,
the Company may, at its option, set an expiration date after which no such
action purported to be given or taken by any Holder shall be effective hereunder
unless given or taken on or prior to such expiration date by Holders of the
requisite principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents). On or prior to any expiration
date set pursuant to this paragraph, the Company may, on one or more occasions
at its option, extend such date to any later date. Nothing in this paragraph
shall prevent any Holder (or any duly appointed agent thereof) from giving or
taking, after any expiration date, any action identical to, or, at any time,
contrary to or different from, any action given or taken, or purported to have
been given or taken, hereunder by a Holder on or prior to such date, in which
event the Company may set a record date in respect thereof pursuant to this
paragraph.
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<PAGE>
Notwithstanding the foregoing or the Trust Indenture Act, the Company shall not
set a record date for, and the provisions of this paragraph shall not apply with
respect to, any action to be given or taken by Holders pursuant to Section 501,
502 or 512.
(f) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or
any one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders of other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company; provided, however, that such notice shall not be deemed
to be given until received by the Company.
Section 106. Notice to Holder; Waiver.
------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
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Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provisions shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
Section 108. Effect of Holdings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction thereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Authenticating Agent, Paying Agent, Security Registrar and the
Holders, any benefit or any legal or equitable right, remedy or claims under
this Indenture.
Section 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of California.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or the Securities
(other than a provision of the Securities of any series
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<PAGE>
which specifically states that such provision shall apply in lieu of this
Section)) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202. Form of Face of Security.
------------------------
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]
-------------------------------------------------
- --------------------------------------------------------------------------------
No. __________ $_______________
CUSIP __________
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<PAGE>
ORACLE CORPORATION, a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________________, or registered
assigns, the principal sum of ____________________ Dollars on __________________
[if the Security is to bear interest prior to Maturity, insert --, and to pay
----------------------------------------------------------------
interest thereon from ________________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semiannually on
___________ and __________ in each year, commencing ____________________, at the
rate of _____% per annum, until the principal hereof is paid or made available
for payment [if applicable, insert --, and (to the extent that the payment of
------------------------
such interest shall be legally enforceable) at the rate of _____% per annum on
any overdue principal and premium and on any overdue installment of interest].
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the_____________ or ___________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity insert -- The
----------------------------------------------------------------
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of _____% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of principal of (and premium, if any) and [if applicable,
--------------
insert -- any such] interest on this Security will be made at the office or
- ------
agency of the Company maintained for that purpose in Los Angeles, California, in
such lawful currency of [the United States of America] as at the time of payment
is legal tender for payment of public and private debts [if applicable,
---------------
insert --;
- ------
-15-
<PAGE>
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereof has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
ORACLE CORPORATION
By ________________________________
Attest:
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of February __, 1997 (herein called the
"Indenture"), between the Company and State Street Bank and Trust Company of
California, N.A., as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof[, limited in
aggregate amount to $__________].
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
---------------------
(1) on ______________ in any year
-16-
<PAGE>
commencing with the year _____ and ending with the year _____ through operation
of the sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after __________, 19__], as a
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed (on or
before ____________, ____%, and if redeemed] during the 12-month period
beginning ___________ of the year indicated,
Year Redemption Price
----------------- ---------------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
---------------------
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose due date is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this Series are subject
---------------------
to redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year _____ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after ____________], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund [expressed as percentages of the principal amount] set forth in the
table below: If redeemed during the 12-month period beginning __________ of the
years indicated,
Redemption Price Redemption Price for
for Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
------ --------------------- ----------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case
-17-
<PAGE>
of any such redemption (whether through operation of the sinking fund or
otherwise) with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
___________, redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than ____% per annum.]
[The sinking fund for this series provides for the redemption on
___________ in each year beginning with the year ______ and ending with the year
______ of [not less than $__________ ("mandatory sinking fund") and not more
than] $_________ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due].]
[If the Security is subject to redemption, insert -- In the event of
------------------------------------------------
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount, Security, insert -
-------------------------------------------------------------------
- - If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
--------------------------------------------- ----------------
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
----------------------------------
amount. Upon payment (i) of the amount of principal so declared due and payable
- ------
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
-18-
<PAGE>
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Secretary or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charges payable in connection therewith.
Prior to due presentation of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of California.
The terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-19-
<PAGE>
[FORM OF OPTION TO ELECT REPAYMENT.]
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Security (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Repayment Date, to the undersigned, at
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address of the Undersigned)
For this Security to be rpaid, the Company must receive this Security,
with this "Option to Elect Repayment" form duly completed, at an office or
agency of the Company maintained for that purpose in ____________, or at such
other place of which the Company shall from time to time notify the Holder, no
less than __________ days nor more than ________ days prior to [__________,...or
_______________] [the ________ or _________(commencing on ________________)].
If less than the entire principal amount of the within Security is to be
repaid, specify the portion thereof (which shall be $_________, or an integral
multiple of $___________) which the Holder elects to have repaid: $ ________.
Dated: ________________________________________
Note: The signature must correspond
with the name as written upon the face of
the Security in every particular without
alteration or enlargement
Section 204. Form of Legend for Global Securities.
------------------------------------
Any Global Security authenticated and delivered hereunder may bear any
legend required to comply with the requirements of any Depositary.
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificates of authentication shall be in substantially
the following form:
-20-
<PAGE>
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY
OF CALIFORNIA, N.A., as Trustee
By
-----------------------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of the Securities of the
series is payable;
-21-
<PAGE>
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates are determined,
the date or dates from which such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable on any Securities and the
Regular Record Date for any interest payable on any Interest Payment Date, and
the basis upon which interest shall be calculated if other than that of a 360-
day year of twelve 30-day months;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable and where the Securities
of any series may be surrendered for registration or transfer;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of such Securities;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(10) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the series
shall be payable if other than the currency of the United States of America and
the manner of determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding" in Section
101;
(11) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference to an
index, formula or other method, the manner in which such amounts shall be
determined;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or those in
which the Securities are stated to be payable, the currency, currencies or
currency units in which payment of the principal of and any premium and interest
on Securities of such series as to which such election is made shall be payable,
and the periods within which and the terms and conditions upon which such
election is to be made;
(13) if other than the principal amount thereof, the portion of the
principal amount
-22-
<PAGE>
of Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502;
(14) the terms and conditions, if any, upon which any Securities of
such series may or shall be converted into other securities or property;
(15) the non-applicablility, or variation, of Sections 1008 and
1009 with respect to the Securities of such series;
(16) if applicable, that the Securities of such series shall be
defeasible as provided in Article Thirteen;
(17) if and as applicable, that the Securities of such series shall be
issuable in whole or in part in the form of one or more Global Securities and,
in such case, the Depositary or Depositaries for such Global Security or Global
Securities and any circumstances other than those set forth in Section 305 in
which any such Global Security may be transferred to, and registered and
exchanged for Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in which such
transfer may be registered;
(18) the Security Registrar, if other than the Trustee, and the entity
who will be the Paying Agent;
(19) if applicable, any Events of Default with respect to Securities
of such series, to the extent that such Events of Default are in addition to the
Events of Default herein contained;
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened for issuances of additional Securities of
such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an
-23-
<PAGE>
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President, one of its
Vice Presidents or its Treasurer, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and upon receipt by the Trustee
of the Supplemental Indenture or Board Resolutions and an opinion of counsel as
described below the Trustee in accordance with the Company Order (which may
provide that Securities that are the subject thereof will be authenticated and
delivered by the Trustee upon the telephonic order promptly followed by written
order of Persons designated in said Company Order and that such Persons are
authorized to determine such terms and conditions of said Securities as are
specified in the Company Order) shall authenticate and deliver such Securities.
If the form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions or Supplemental Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(1) if the form such Securities has been established by or pursuant to
a Board Resolution as permitted by Section 201 or a Supplemental Resolution,
that such form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 301 or a Supplemental
Resolution, that such terms have been established in conformity with the
provisions of this Indenture; and
-24-
<PAGE>
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors, rights
and to general equity principals and to such other matters as counsel may
specify.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and contemplate issuance of all Securities
of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determined, as
evidenced by their execution of such Securities.
-25-
<PAGE>
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section
1002 in a Place of Payment for that series for the purpose of exchanges of
Securities of such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
-26-
<PAGE>
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1007 not involving any transfer.
The Company shall not be required (a) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (b) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except in the case of any Security to be redeemed in part, the portion
thereof not to be redeemed.
Notwithstanding any other provision in this Indenture, any Global
Security shall be exchangeable pursuant to this Section 305 for Securities
registered in the names of Persons other than the Depositary for such Global
Security or its nominee only when (a) the Depositary notifies the Company and
the Trustee in writing that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary ceases to be a
clearing agency registered under the Exchange Act and a successor Depositary is
not appointed by the Company within 90 days, (b) the Company in its sole
discretion determines not to have all of the Securities represented by a Global
Security and executes and delivers to the Trustee a Company Order that such
Global Security shall be so exchangeable, (c) there shall have occurred and be
continuing an Event of Default or an event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default with respect to the
Securities represented by such Global Security or (d) there shall exist such
other circumstances, if any, as shall be specified for this purpose as
contemplated by Section 301. Any Global Security that is exchangeable pursuant
to clause (a), (b), (c) or (d) above, shall be surrendered by the Depositary, or
such other depositary as shall be specified in the Company Order with respect
thereto, to the Trustee, as the agent for such purpose, to be exchanged, in
whole or in part, for definitive Securities without charge, and the Trustee
shall authenticate and deliver, in exchange for each portion of such permanent
Global Security, an equal aggregate principal amount of definitive Securities,
executed by the Company, of the same series of authorized denominations and of
like tenor as the portion of such Global Security to be exchanged, which shall
be in the form of registered Securities as provided in the Company Order.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security other than
pursuant to clauses (a), (b), (c) or (d) in the preceding paragraph, whether
pursuant to this Section, Sections 304, 306, 906 or 1107 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
-27-
<PAGE>
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (b) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest: Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
In the case of Securities represented by a Global Security registered
in the name of or held by a Depositary or its nominee, unless otherwise
specified by Section 301, payment of
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principal, premium, if any and interest, if any, will be made to the Depositary
or its nominee, as the case may be, as the registered owner or Holder of such
Global Security. None of the Company, the Trustee, any Paying Agent, any
Authenticating Agent nor the Security Registrar for such Securities will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interest in an Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such series
at his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice is
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.
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At the option of the Company, interest on Securities of any series
that bear interest may be paid by wire transfer to an account within the United
States or by mailing a check to the address of the Person entitled thereto as
such address shall appear in the Security Register.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (except as otherwise specified as contemplated by Section 301(3) and subject
to Section 307) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
In the case of a Global Security, so long as the Depositary for such
Global Security, or its nominee, is the registered owner of such Global
Security, such Depositary or such nominee, as the case may be, will be
considered the sole owner or Holder of the Securities represented by such Global
Security for all purposes under this Indenture. Except as provided in Section
305, owners of beneficial interests in a Global Security will not be entitled to
have Securities that are represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such
Securities in definitive form and will not be considered the owners or Holders
thereof under this Indenture.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall (a) prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depositary or (b) impair, as between a
Depositary and holders of beneficial interests in any Global Security, the
operation of customary practices governing the exercise of the rights of the
Depositary as holder of such Global Security.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Security issued in global form or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company
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may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be disposed of by
the Trustee in accordance with its customary practices and the Trustee shall
from time to time, or upon request by the Company, deliver to the Company
certificates of destruction with respect thereto.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; o r
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
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(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose, lawful money of the United States or U.S.
Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide lawful money not later than one day before the due dates of
principal (and premium, if any) or interest, or any combination
thereof, in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest
to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to the
Securities of all series to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited
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with the Trustee pursuant to Section 401 shall be held in trust and applied by
it, in accordance with the provisions of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto as set forth in the Securities Register, of the principal and
any premium and interest for whose payment such money has been deposited with
the Trustee.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is either inapplicable to a particular series or it is
specifically deleted or modified in the supplemental indenture creating such
series of Securities or in the form of Security for such series:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is specifically dealt with elsewhere in this
Section or which has expressly been included in this Indenture solely for the
benefit of a series of Securities other than that series or which has been
included in this Indenture but not made applicable to the Securities of such
series), and continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 15% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) failure by the Company to make any payment at maturity, including
any applicable grace period, in respect of indebtedness, which term as used
herein means obligations (other than the Securities of such series or
non-recourse obligations) of the Company for borrowed money or evidenced by an
amount in excess of $25,000,000 or the equivalent thereof in any other currency
or composite currency and such failure shall have continued for thirty (30)
days after written notice thereof shall have been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 15% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
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(6) a default with respect to any Indebtness, which default results in
the acceleration of Indebtness in an amount in excess of $25,000,000 or the
equivalent thereof in any other currency or composite currency without such
Indebtness having been discharged or such acceleration having been cured,
waived, rescinded or annulled for a period of thirty (30) days after written
notice thereof shall have been given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 15% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
(7) the entry by a court having jurisdiction in the premises of (a) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (b) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its properties, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 90 consecutive
days; or
(8) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company to the entry of a decree or
order for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company, or the filing by the Company of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by the Company to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of
any substantial part of its properties, or the making by the Company of an
assignment for the benefit of creditors, or the admission by the Company in
writing its inability to pay its debts generally as they become due, or the
taking of corporate
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action by the Company in furtherance of any such action; or
(9) any other Event of Default provided with respect to Securities of
that series.
Provided that if any such Failure, default or acceleration referred to
in clauses (5) or (6) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default hereunder by reason thereof shall be deemed
likewise to have been thereupon cured.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501 with respect to Securities of any series, a record date shall
automatically and without any other action by any Person be set for the purpose
of determining the Holders of Outstanding Securities of such series entitled to
join in such Notice of Default, which record date shall be the close of business
on the day the Trustee receives such Notice of Default. Promptly after the
establishment of a record date pursuant to the provisions of this Section 501,
the Trustee shall notify the Company and the Holders of Outstanding Securities
of such series of the establishment of such record date. The Holders of
Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
Notice of Default, whether or not such Holders remain Holders after such record
date; provided that, unless such Notice of Default shall have become effective
by virtue of Holders of the requisite principal amount of Outstanding Securities
of such series on such record date (or their duly appointed agents) having
joined therein on or prior to the 90th day after such record date, such Notice
of Default shall automatically and without any action by any Person be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder (or
a duly appointed agent thereof) from giving, before or after the expiration of
such 90-day period, a Notice of Default contrary to or different from, or, after
the expiration of such period, identical to, a Notice of Default that has been
canceled pursuant to the proviso to the preceding sentence, in which event a new
record date in respect thereof shall be set pursuant to this paragraph.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made, but before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such acceleration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
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(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities, to the extent that payment of such interest is
lawful;
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in
such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or any
rescission and annulment of any such declaration, pursuant to this Section 502
with respect to Securities of any series, a record date shall automatically and
without any other action by any Person be set for the purpose of determining the
Holders of Outstanding Securities of such series entitled to join in such
declaration, or rescission or annulment, as the case may be, which record date
shall be the close of business on the day the Trustee receives such declaration,
or rescission and annulment, as the case may be. Promptly after the
establishment of a record date pursuant to the provisions of this Section 502,
the Trustee shall notify the Company and the Holders of Outstanding Securities
of such series of the establishment of such record date. The Holders of
Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
declaration, or rescission and annulment, as the case may be, whether or not
such Holders remain Holders after such record date; provided that, unless such
declaration, or rescission and annulment, as the case may be, shall have become
effective by virtue of Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents)
having joined therein on or prior to the 90th day after such record date, such
declaration, or rescission and annulment, as the case may be, shall
automatically and without any action by any Person be canceled and of no further
effect. Nothing in this paragraph shall prevent a Holder (or a duly appointed
agent thereof) from giving, before or after the expiration of such 90-day
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period, a declaration of acceleration, or a rescission and annulment of any such
declaration, contrary to or different from, or, after the expiration of such
period, identical to, a declaration, or rescission and annulment, as the case
may be, that has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date in respect thereof shall be set
pursuant to this paragraph.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if:
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or purchase fund
or analogous obligation when the same becomes due by the terms of the Securities
of any series, and any such default continues for any period of grace provided
with respect to the Securities of such series.
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security (or the Holders of any such series in the case of
clause (3) above), the whole amount then due and payable on any such Security
(or on the Securities of any such series in the case of clause (3) above) for
principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor by
the terms of any such Security (or of Securities of any such series in the case
of clause (3) above); and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceedings to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities of such series and
collect the money adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
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Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereof of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and
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any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively; and
THIRD: The balance, if any, to the Company or any other Person or
Persons entitled thereto.
In any case where Securities are outstanding which are denominated in
more than one currency, or in a composite currency and at least one other
currency, and the Trustee is directed to make ratable payments under this
Section to Holders of Securities, the Trustee shall calculate the amount of such
payments as follows: (i) as of the day the Trustee collects an amount under this
Article, the Trustee shall, as to each Holder of a Security to whom an amount is
due and payable under this Section which is denominated in a foreign currency or
a composite currency, determine that amount of U.S. Dollars that would be
obtained for the amount owing such Holder, using the rate of exchange at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York U.S. Dollars with such amount owing, (ii) calculate the sum of
all U.S. Dollar amounts determined under (i) and add thereto any amounts due and
payable in U.S. Dollars; and (iii) using the individual amounts determined in
(i) or any individual amounts due and payable in U.S. Dollars, as the case may
be, as a numerator and the sum calculated in (ii) as a denominator, calculate as
to each Holder of a Security to whom an amount is owed under this Section the
fraction of the amount collected under this Article payable to such Holder. Any
expenses incurred by the Trustee in actually converting amounts owing Holders of
Securities denominated in a currency or composite currency other than that in
which any amount is collected under this Article shall be likewise (in
accordance with this paragraph) borne ratably by all Holders of Securities to
whom amounts are payable under this Section.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of, or any premium or interest
on the Securities of any series (the "Required Currency") into a currency in
which judgment will be rendered (the "Judgment Currency"), the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the New York Business Day preceding that on which final
judgment is given. The Company shall not be liable for any shortfall nor shall
it benefit from any windfall in payments to Holders of Securities under this
Section caused by a change in exchange rates between the time the amount of a
judgment against it is calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make payments under this Section
to Holders of Securities, but payment of such judgment shall discharge all
amounts owed by the Company on the claim or claims underlying such judgment.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
--------
Notwithstanding any other provision of this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of any premium and (except as specified as
contemplated by Section 301(3) and subject to Section 307) any
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interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
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(2) the Trustee shall not determine (it being understood that the
Trustee shall have no obligation to make such determination) that the action so
directed would be unjustly prejudicial to Holders of Securities of that series,
or any other series, not taking part in such direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to
Securities of any series, a record date shall automatically and without any
other action by any Person be set for determining the Holders of Outstanding
Securities of such series entitled to join in such direction, which record date
shall be the close of business on the day the Trustee receives such direction.
Promptly after the establishment of a record date pursuant to the provisions of
this Section 512, the Trustee shall notify the Holders of Outstanding Securities
of such series of the establishment of such record date. The Holders of
Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
direction, whether or not such Holders remain Holders after such record date;
provided that, unless such direction shall have become effective by virtue of
Holders of the requisite principal amount of Outstanding Securities of such
series on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such direction shall
automatically and without any action by any Person be canceled and of no further
effect. Nothing in this paragraph shall prevent a Holder (or a duly appointed
agent thereof) from giving, before or after the expiration of such 90-day
period, a direction contrary to or different from, or, after the expiration of
such period, identical to, a direction that has been canceled pursuant to the
proviso to the preceding sentence, in which event a new record date in respect
thereof shall be set pursuant to this paragraph.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no
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such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
Section 515. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing (but subject to Section
107), 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. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any series
of which the Trustee has notice, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided
by
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the Trust Indenture Act and in the manner provided in Section 106; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series. The Trustee shall not be deemed to have notice of
any default or Event of Default unless the Corporate Trust Department of the
Trustee has actual knowledge of such default or Event of Default.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(1) 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, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) 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;
(5) the Trustee shall be under no obligation to exercise any of the
rights of powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
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(7) 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.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. Money Held in Securities.
------------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for investment of or interest on any money received by it
hereunder except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee 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 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 to the extent any such
expense, disbursement or advance may be attributable to its negligence or
bad faith; and
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(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder or the
performance of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for payment of principal of (and premium, if any) or interest, if
any, on particular Securities.
"Trustee", for purposes of this Section 607, includes any predecessor
Trustee, provided that the negligence or bad faith of any Trustee shall not
affect the rights under this Section 607 of any other Trustee.
Section 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture, and the Company
shall take prompt action to have a successor Trustee appointed in the manner
provided herein.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which shall be a Person that is eligible pursuant to
the Trust Indenture Act to act as such, has (or if such Trustee is a member of a
bank holding company system, its bank holding company has) a combined capital
and surplus of at least $50,000,000 and is subject to supervision or examination
by Federal or State authority. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then, for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
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(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(A) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(B) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(C) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within six months after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
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retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 611, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to Securities of any series and each
appointment of a successor Trustee with respect to Securities of any series to
all Holders of Securities of such series in the manner provided in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (ii)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(iii) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing
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herein or in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
In the event any Securities shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate and deliver
such Securities, in either its own name or that of its predecessor Trustee, with
the full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
Section 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
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The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having (or if such Authenticating Agent is a member of a bank holding
company system, its bank holding company has) a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal
or State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then, for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
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STATE STREET BANK AND TRUST COMPANY
OF CALIFORNIA, N.A., As Trustee
By: ,
----------------------------
As Authenticating Agent
By: ,
----------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after the Regular Record
Date for each series of Securities, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities
as of such Regular Record Date, or if there is no Regular Record Date for
interest for such series of Securities, semi-annually, upon such dates as
are set forth in the Board Resolution or indenture supplemental hereto
authorizing such series, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities (i)
contained in the most recent list furnished to the Trustee for each series as
provided in Section 701 and (ii) received by the Trustee for each series in its
capacity as Security Registrar if the Trustee is acting in such capacity. The
Trustee may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders of securities, as their
names and addresses appear in the Security Register, such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704 Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, if any, and
such summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person,
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the Person formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety shall
be a corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State thereof
or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of and any premium and interest on all the Securities and the performance
or observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section
1008 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (9)
shall not adversely affect the interests of the Holders of Securities of
any series in any material respect.
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Section 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any payment with
respect to any Security on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1011, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to the
"Trustee" and concomitant changes in this Section and Section 1011, or the
deletion of the proviso, in accordance with the requirements of Sections
611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the
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particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
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The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree
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with the Trustee, subject to the provisions of this Section, that such Paying
Agent will (a) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent and (b) during the continuance of any default by the
Company (or any other obligor upon the Securities of that series) in the making
of any payment in respect of the Securities of that series, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for a period
ending the earlier of ten Business Days prior to the date such funds would
escheat to the State of California or two years after such principal, premium or
interest has become due and payable shall be paid to the Company on Company
Request (including interest income accrued on such funds, if any), or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease.
Section 1004. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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Section 1006. Maintenance of Properties.
-------------------------
The Company will cause all material properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as (and to the extent)
in the judgment of the Company may be necessary or appropriate in connection
with its business; provided, however, that nothing in this Section shall prevent
the Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
Section 1007. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
within 30 days after the Company shall have received notice that the same has
become delinquent (1) all material taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary or upon the income, profits
or property of the Company or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a material
lien upon the property of the Company or any Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity, is being contested in good faith by appropriate proceedings;
provided, further, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim unless
the failure to pay or discharge such tax, assessment, charge or claim, would,
individually or in the aggregate with all such failures, have a material adverse
effect on the Company and its Subsidiaries taken as a whole.
Section 1008. Limitations on Liens.
--------------------
(a) Unless the terms of a particular series of Securities
otherwise provide, so long as any Securities of such series remain
outstanding, the Company will not, nor will it permit any Restricted
Subsidiary to, issue, incur, create, assume or guarantee any debt for borrowed
money (hereinafter in this Article 10 referred to as "Debt"), secured by a
mortgage, security interest, pledge, lien, charge or other encumbrance
(mortgage, security interests, pledges, liens, charges and other encumbrances
being hereinafter in this Article 10, referred to as "mortgage" or
"mortgages") upon any Principal Property of the Company or any Restricted
Subsidiary or upon any shares of stock or indebtedness of any Restricted
Subsidiary (whether such Principal Property, shares of stock or indebtedness
are not existing or owed or hereafter created or acquired) without in any such
case effectively providing concurrently with the issuance, incurrence,
creation, assumption or guaranty of any such Debt or the grant of a mortgage
with respect to any such Debt that the Securities of such series Outstanding
(together with, if the Company shall so determine, any other indebtedness of
or guarantee by the Company or such Restricted Subsidiary ranking equally with
the
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Securities of such series Outstanding and then existing or thereafter created)
shall be secured equally and ratably with (or, at the Company's option, prior
to) such Debt; provided, however, that the foregoing restrictions shall not
apply to Debt secured by:
(1) mortgages on property, shares of stock or indebtedness or other
assets of any corporation existing at the time such corporation becomes a
Restricted Subsidiary, provided that such mortgages or liens are not
incurred in anticipation of such corporation becoming a Restricted
Subsidiary;
(2) mortgages on property, capital stock or indebtedness existing at
the time of acquisition thereof by the Company or a Restricted Subsidiary
(which may include property previously leased by the Company and leasehold
interests thereon; provided that the lease terminates prior to or upon the
acquisition) or mortgages thereon to secure the payment of all or any part
of the purchase price thereof, or mortgages on property, capital stock or
indebtedness to secure any debt incurred prior to, at the time of, or
within 270 days after, the latest of the acquisition thereof, or, in the
case of property, the completion of construction, the completion of
improvements or the commencement of substantial commercial operation of
such property for the purpose of financing all or any part of the purchase
price thereof, such construction or the making of such improvements;
(3) mortgages securing Debt owing to the Company or to a Restricted
Subsidiary;
(4) mortgages existing on the date of initial issuance of the
Securities of such series;
(5) mortgages on property or other assets of a corporation existing
at the time such corporation is merged into or consolidated with the
Company or a Restricted Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary,
provided that such mortgage was not incurred in anticipation of such merger
or consolidation or sale, lease or other disposition;
(6) mortgages in favor of the United States of America or any State,
territory or possession thereof (or the District of Columbia), or any
department, agency, instrumentality or political subdivision of the United
States of America or any State, territory or possession thereof (or the
District of Columbia), to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any Debt incurred
for the purpose of financing all or any part of the purchase price or the
cost of construction or improvement of the property subject to such
mortgages;
(7) mortgages created in connection with a project financed with, and
created to secure, a Nonrecourse Obligation; or
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(8) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any mortgage referred to
in the foregoing clauses (1) to (7), inclusive, without increase of the
principal of the Debt secured thereby; provided, however, that such
extension, renewal or replacement shall be limited to all or a part of the
property which secured the mortgage extended, renewed or replaced (plus
improvements on such property).
(b) Notwithstanding the foregoing provisions of this Section 1008,
the Company and any one or more Restricted Subsidiaries may issue, incur,
create, assume or guarantee Debt secured by mortgages which would otherwise be
subject to the foregoing restrictions ("Exempted Secured Debt") in an aggregate
amount which, together with all other outstanding Debt of the Company and its
Restricted Subsidiaries which (if originally issued, incurred, created, assumed
or guaranteed at such time) would otherwise be subject to the foregoing
restrictions (including Attributable Debt in respect of Sale and Lease-Backs as
provided in Section 1009, but not including Debt permitted to be secured under
any of clauses (1) through (8) above or Attributable Debt with respect to a Sale
and Lease-Back if Debt at least equal in amount to the Attributable Debt in
respect of such Sale and Lease-Back could have been issued, incurred, created,
assumed or guaranteed by the Company or one or more Restricted Subsidiaries
under any of clauses (1) through (8) above), does not at the time exceed the
greater of $300,000,000 or 10% of Consolidated Net Tangible Assets of the
Company.
Section 1009. Limitations on Sale and Lease-Back Transactions.
-----------------------------------------------
(a) Unless the terms of a particular series of Securities
otherwise provide, so long as any Securities of such series remain
outstanding, the Company will not, nor will it permit any Restricted
Subsidiary to, enter into any direct or indirect arrangement with any person
that provides for the leasing to the Company or any Restricted Subsidiary of
any Principal Property (except for leases for a term of not more than three
years and except for leases between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries), which Principal Property has been or is to
be sold or transferred by the Company or such Restricted Subsidiary to such
person (such arrangement herein in this Section 1009 referred to as a "Sale
and Lease-Back"), unless:
(1) the Company or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 1008, to issue, incur, create, assume
or guarantee Debt secured by a mortgage upon such property at least equal
in amount to the Attributable Debt in respect of such Sale and Lease-Back
without equally and ratably securing the Securities of such series
Outstanding; provided, however, that from and after the date on which such
Sale and Lease-Back becomes effective the Attributable Debt in respect of
such Sale and Lease-Back shall be deemed for all purposes under Section
1008 and this Section 1009 to be Debt subject to the provisions of Section
1008 (including, without limitation, for purposes of calculating Exempted
Secured Debt as provided in Section 1008(b)); or
(2) within 180 days of the effective date of such Sale and Lease-
Back, the
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Company shall apply an amount in cash equal to the greater of the
net proceeds of the sale involved in such Sale and Lease-Back or the
Attributable Debt in respect of such Sale and Lease-Back to either (or a
combination of) (i) the retirement (other than any mandatory retirement,
mandatory prepayment or sinking fund payment or by way of payment at
maturity), of debt of the Company or any Restricted Subsidiary (other than
Debt owed by the Company or any Restricted Subsidiary to the Company or any
Restricted Subsidiary or Debt which is subordinate to Securities of such
series Outstanding) which by its terms matures at or is extendible or
renewable at the option of the obligor to a date more than twelve months
after the date of the creation of such Debt, or (ii) to the purchase,
construction or development (or any combination thereof) of other
comparable property.
(b) For the purposes of this Section 1009, the term "Attributable
Debt" with respect to a Sale and Lease-Back involving a Principal Property
means, at the time of determination, the lesser of:
(1) the fair value of the property which is the subject of such Sale
and Lease-Back (as determined in good faith by the Board of Directors); or
(2) the present value of the total net amount of rent required to be
paid under such Sale and Lease-back during the remaining term thereof
(including any renewal term or period for which such lease has been
extended), discounted at the rate of interest set forth or implicit in the
terms of such Sale and Lease-back or, if not practicable to determine such
rate, the weighted average interest rate per annum borne by the Debt
Securities of each series outstanding pursuant to this Indenture compounded
semi-annually in either case as determined by the principle accounting
officer of the Company. For purposes of this definition, rent shall not
include amounts required to be paid by the lessee, whether or not
designated as rent or additional rent, on account of or contingent upon
maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount shall be the lesser of the
(i) net amount determined assuming termination upon the first date such
lease may be terminated (in which case the net amount shall also include
the amount of the penalty, but no rent shall be considered as required to
be paid under such lease subsequent to the first date upon which it may be
so terminated) or (ii) the net amount determined assuming no such
termination.
(c) Notwithstanding the foregoing provisions of this Section 1009,
the Company and any one or more Restricted Subsidiaries may enter into an
arrangement that provides for the leasing to the Company or a Restricted
Subsidiary of any Principal Property which would otherwise be subject to the
foregoing restrictions without applying the net proceeds of such transactions in
the manner set forth in clause (b) above, provided that after giving effect
thereto, the aggregate amount of such Sale and Lease-Back Transactions, together
with the aggregate amount of all debt secured by mortgages not permitted by
clauses (1) through (8) under the limitation in the Indenture on
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mortgages, does not exceed the greater of $300,000,000 or 10% of the
Consolidated Net Tangible Assets of the Company.
Section 1010. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1008 and 1009 with respect to
the Securities of any series if before the time for such compliance the Holders
of not less than a majority in principal amount of the Outstanding Securities of
such series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series of the same tenor, the
Company shall, at least 60 days (45 days in the case of redemption of all
Securities of any series or of any series of the same tenor) prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, as directed by
the Company or if no direction is given, pro rata among the Stated Maturities of
such series and by lot within each Stated Maturity
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<PAGE>
and which selection may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series. If less than all of the Securities of such series
(and of a specified tenor are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series (and specified
tenor) not previously called for redemption in accordance with the preceding
sentence. Unless otherwise provided in the terms of a particular series of
Securities, the portions of the principal of Securities so selected for partial
redemption shall be equal to the minimum authorized denomination of the
Securities of such series, or an integral multiple thereof, and the principal
amount which remains denomination for Securities of such series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
Any notice that is mailed to the Holder of any Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid,
(3) if less than all the Outstanding Securities of the Stated Maturity
and of the same series are to be redeemed, the identification (and, in the
case of partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed,
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<PAGE>
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
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<PAGE>
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." The cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (a) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (b) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
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
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<PAGE>
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will delivery to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering the crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
Section 1302 and/or Section 1303 shall apply to the Outstanding
Securities of any series to the extent specified as contemplated by Section 301
for Securities of such series.
Section 1302. Defeasance and Discharge.
------------------------
The Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series as
provided in this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called "Defeasance"). For this purpose,
such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to have satisfied all of its other obligations under the
Securities of such series and this Indenture insofar as the Securities of such
series are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of Securities of such series to receive, solely from the trust
fund described in Section 1304 and as more fully set forth in such Section,
payments in respect of the principal of and any premium and interest on such
Securities of such series when payments are due, (b) the Company's obligations
with respect to the Securities of such series under Sections 304, 305, 306, 1002
and 1003, (c) the rights, powers, trusts, duties and
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<PAGE>
immunities of the Trustee here under and (d) this Article Thirteen. Subject to
compliance with this Article Thirteen, the Company may defease the Outstanding
Securities of any series pursuant to this Section 1302 notwithstanding the prior
Defeasance of the Outstanding Securities of such series pursuant to Section
1303.
Section 1303. Covenant Defeasance.
-------------------
The Company shall be released from its obligations under Sections
1005 through 1010, inclusive, and the occurrence of any event specified in
Sections 501(4), (with respect to any of Sections 1005 through 1010 inclusive,
and 501(7) shall be deemed not to be or result in an Event of Default, in each
case with respect to Outstanding Securities of any series as provided in this
Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section (to the extent so specified in the case of Section 501(4)),
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or provision herein or in any other document, but the remainder
of this Indenture and the Securities of such series shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to Defeasance pursuant to
Section 1302 or Covenant Defeasance pursuant to Section 1303 to the Outstanding
Securities of any series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (A) money in an amount,
or (B) U.S. Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or any such other qualifying trustee) to pay and discharge each
installment of principal (including mandatory sinking fund payments) of,
and premium (not relating to optional redemption), if any, and interest on,
the Outstanding Securities of such series on the dates such installments of
principal of, and premium (not relating to optional redemption), if any, or
interest are due.
(2) In the case of Defeasance under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the
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<PAGE>
date first set forth hereinabove, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the effect that, and
based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to the Securities of such series and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(3) In the case of Covenant Defeasance under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with respect
to the Securities of such series and will be subject to Federal income tax
on the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted as a result of such
deposit.
(5) No Event of Default or event that (after notice or lapse of time
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 501(5) and (6), at any time
on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided with respect to such Defeasance or Covenant Defeasance
have been complied with.
(9) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be qualified under such Act or exempt from regulation
thereunder.
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<PAGE>
(11) Such deposit pursuant to such Defeasance or Covenant Defeasance
will not result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which the Company is
a party or by which it is bound.
Section 1305. Deposited Money and U.S. Government Obligations to be Held in
-------------------------------------------------------------
Trust; Other Miscellaneous Provisions.
-------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1306, the Trustee and such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of the
Securities of any Defeasible Series shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of such series, of all sums due and
to become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which with respect to Securities of any Defeasible Series that, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
Section 1306. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Thirteen with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Thirteen with respect to Securities of such series until such time
as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 1305 with respect to Securities of such series in accordance
with this Article Thirteen; provided, however, that if the Company makes any
payment of principal of or any premium or interest on any Security of such
series following the reinstatement
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<PAGE>
of its obligations, the Company shall be subrogated to the rights of the Holders
of Securities of such series to receive such payment from the money so held in
trust.
ARTICLE FOURTEEN
REPAYMENT AT OPTION OF SECURITY HOLDERS
Section 1401. Applicability of Article.
------------------------
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as otherwise contemplated by Section 301 for Securities
of such series) in accordance with this Article.
Section 1402. Repayment of Securities.
-----------------------
Each Security which is subject to repayment in whole or in part at the
option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
Section 1403. Exercise of Option; Notice.
--------------------------
Each Holder desiring to exercise his option for repayment shall, as
conditions to such repayment surrender the Security to be repaid together with
all coupons, if any, appertaining thereto maturing after the Repayment Date and
with written notice of the exercise of such option at any office or agency of
the Company in a Place of Payment, not less than 15 nor more than 30 days prior
to the Repayment Date. Such notice, which shall be irrevocable, shall identify
the Security to be repaid and shall specify the principal amount of such
Security to be repaid, which shall be not less than the minimum authorized
denomination for such Security or an integral multiple thereof and, in the case
of a partial repayment of the Security, the denomination or denominations of the
Security or Securities with Equivalent Principal Terms to be issued to the
Holder for the portion of the principal of the Security surrendered which is not
to be repaid.
Any Security which is to be repaid only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities with Equivalent Principal Terms, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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<PAGE>
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid only in part, to the portion
of the principal of such Security which has been or is to be repaid.
Section 1404. Securities Payable on the Repayment Date.
----------------------------------------
Notice of exercise of the option of repayment having been given and
the Securities so to be repaid having been surrendered as aforesaid, such
Securities shall, on the Repayment Date, become due and payable at the Repayment
Price therein specified and from and after such date (unless the Company shall
default in the payment of Repayment Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such Security for repayment
in accordance with Section 1403, such Security shall be paid by the Company at
the Repayment Price, together with accrued interest to the Repayment Date;
provided, however, that, installments of interest on Securities whose Stated
Maturity is on or prior to the Repayment Date shall be payable to the Holders of
such Securities, or one or more Predecessor Securities, required as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security duly surrendered for repayment shall not be paid, the
principal and any premium shall, until paid, bear interest from the Repayment
Date at the rate prescribed therefor in the Security. __________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
ORACLE CORPORATION
By /s/ Bruce Lange
------------------------------------------------
Vice President and Treasurer
Attest:
/s/ L. Patricia Moncada
________________________
Assistant Secretary
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA,
N.A.
By /s/ Jeannie Mar
-----------------------------------------------
Authorized Officer
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